International Arbitrators for Standards of Conduct- MyAssignmenthelp

Question: Discuss about theInternational Arbitrators for Standards of Conduct. Answer: Introduction Alternative resolution has grown to be one of the most common modes of solving disputes between parties in many jurisdictions (Paulsson, 2010). The concept encompasses various forms of mechanisms such as mediation arbitration and conciliation which work differently. It gives added relevance to state that Arbitration is one of the alternative form of dispute resolution that has been given international recognition through treaties and conventions (Thomas, 1993). In New Zealand arbitration has been given legal force through legislation after the enactment of Arbitration Act 1996 (NZ). Arbitration is mechanism of dispute resolution that does not apply the court rules and it is only effective and successful when the parties involved in the dispute agree. It bears noting that solicitors and lawyers in modern day have been compelled to have arbitration skills because of its increasing importance and popularity in New Zealand. This essay is devoted to evince why arbitration will be the suit able alternative dispute resolution mode to solve the dispute in Rack and Roll case. Where a contract has not provided for an arbitration clause when a dispute arises the obvious action is that the aggrieved party will follow the litigation process through commencing a suit to sue for breach. However, since arbitration has been given the force law in New Zealand a party in a contractual dispute may seek a stay in court or may agree with the other party to arbitrate the matter. The basic rule that guides an arbitration process is that the parties in the dispute are treated equally without bias and thus the parties in Rack and Roll case are likely to get a fair outcome that will end the dispute amicably. Byrne J in the case of Re Tiki Village International Ltd (1994) noted that an arbitrator is like the judge and not is expected that he should not pick sides while solving a dispute. The parties in an arbitration proceeding have the advantage of choosing a location which they are going to hold the proceeding. They also decide with the arbitrator on the day and time of t he proceedings when the arbitration agreement is silent about the time. The location is not imposed on them like it is imposed on parties in litigation proceedings. Ideally, the flexibility that is offered on the parties in arbitration proceedings gives them the impetus to solve their case determinately. The procedure that is applied in arbitration proceeding is not rigid and it is unlikely that the parties will disagree during the proceedings (Thomas, 1993). In New Zealand the objective of arbitration to ensure that the parties end up getting an outcome that will favor both parties and the matter will be heard expeditiously and without great expense (S 1 Arbitration Act 1996). Further the act stipulated that the parties in dispute must given the autonomy to decide how the process of deciding the dispute will operate and deputes that court intervention should be avoided. Arbitration works best through the principle of consent. Before the arbitration process commence the parties in dispute must give express consent that they are willing to pursue arbitration as a mode of agreement. It will be fruitless to compel them to follow arbitration process without there consent. In the Rack roll case Mike walked out of the mediation process and this explains why consent in the arbitration process is a first step to seeking justice for both parties. Where the parties have agreed it is imperative that an arbitration agreement is drafted so that the ri ghts and obligations of the parties are determined (Art. 19 in the Schedule 1 to the Arbitration Act 1996). The significance of the arbitration agreement is that it sets a clear path for the process because each party will have a fair opportunity to present their case. Ideally, an arbitrator must be selected by the parties although in the Rack and Roll case an arbitrator has already been selected. The advantage of the arbitration process is that the arbitrator is guided by the rules that the parties in dispute have stipulated in the arbitration agreement and the general principles of natural justice. Justice Kirby has noted arbitrators and mediators have to apply high level of competence, skill and novelty when handling disputes between parties (The Arbitrator 1999). It is therefore prudent for the arbitrator in the Rack and Roll case to employ plausible techniques that will effectively bring the dispute to a close with both parties satisfied. An arbitrator must therefore have sufficient knowledge of the relevant facts of the case so that they can be able to arrive at an informed decision (Rogers, 2005). The arbitrator should also be able to record the different versions of relevant facts where there are diverging relevant facts (Rogers, 2005). In the Rack and Roll case the dispute arising is an allegation of breach of contract and thus aspects of contract law may arise during the case. Where an arbitrator does not have sufficient legal knowledge it is imperative that an order is sought form the high court so that an interpretation of the court may be sought or a legal expert may be invited to the proceeding to solely advise on the area of law in contention (Art. 26 in the Schedule 1 to the Arbitration Act 1996). The determination given by a legal expert may not be binding according to the arbitration agreement. In such a case the parties in dispute should be advised to prove test the report given by the expert. Under the common law, an arbitrator has been restricted from delegating his responsibility to determine the issues of the dispute (William Essery Sons Pty. Ltd. v. South Australian Housing Trust, 1980). In New Zealand the arbitrator has the mandate of inviting another party such as an expert to determine an issue in the dispute but this form of delegation is subject to the consent of the parties in dispute. The arbitrator in an arbitration proceeding must reveal commitment effort and must create sufficient time to handle the dispute especially if the dispute is complex in nature. Arbitration is a method of dispute resolution that helps to maintain the existing relationship between the parties in dispute. If the parties engaged in a certain business and a dispute arose arbitration creates a platform in which they will continue to do business together in future transaction. In the case of Rack and Roll the parties in dispute will not be hindered from making another agreement in future at the end of the arbitral process. Arbitration proceedings are not guided by the common law precept of precedent. An arbitrator is required is required to hear and determine the dispute on a case to case basis according to the arbitration agreement (Rogers, 2005). The arbitrator appointed in the case of Rack and Roll has an ethical obligation to fulfill so that the dispute comes to an end. The ethical obligation of an Arbitrator in New Zealand is derived from Arbitration Act 1996 and the AMINZ Code of Ethics and it plays significant role in disputes. AMINZ is an organization composed of arbitrators and mediators with an objective of promoting alternative dispute resolution (Anthony, 2010). In New Zealand an arbitrator is required to be impartial and independent ( AMINZ Code of Ethics). Impartiality means that the arbitrator must be of the requisite state of mind to determine the dispute (Rogers, 2005). Independence means that the arbitrator must be not be subject to the control of either party in the dispute or any ot her external factor. The parties in the dispute have a duty of disclosure when they perceive that the arbitrator is not independent or impartial in handling the case. An arbitrator also has a duty of diligence and to be competent (Rogers, 2005). It has been argued that before one accept the appointment as an arbitrator they should ensure that they have the skills and competence in the specific dispute resolution proceeding. In the case of Rack and Roll, the arbitrator must therefore be sure that they have the requisite competence and skill in arbitrating breach of contract issue. The duty of diligence required of an arbitrator implies that he must be careful and be attentive to all the issues that are presented before the case. The arbitration process is held privately and the arbitrator is also required to embrace confidentiality unless the parties agree otherwise. Section 14B of the Arbitration Act 1996 obligates all the members who take part in the arbitration proceeding not to disclose any confidential information relating to the proceeding. The autonomy of the parties in dispute is very significant for the proceeding to be successful and thus the arbitrator must ensure that he abides to the wishes of the parties encapsulated in the arbitration agreement. The arbitration agreement is contractual in nature and it binds the arbitrator to the entire process. The significance of arbitration in handling the Rac and Roll case is that the parties in dispute are not left to negotiate the issue alone but rather there is a neutral party and a well structured procedure of handling the proceeding. It has been argued disputes that are solved through arbitration process have a predictable outcome because the decision is hinged on the autonomy of the parties and dispute and hence fairness is promoted (Kiser, 2010). In the case of Rac and Roll it is prudent that the negotiators and any other person who was involved in the previous failed process not to take part in the proceedings. The process of Arbitration is perceived to be better than mediation because mediation involves a casual process and may not be able to handle serious or complex matters. It is worth noting that the arbitration agreement binds the parties and it may be enforced in a court of law and therefore the parties in dispute must use their autonomy wisely. It is submitted that the arbitration proceeding will also be met with many challenges. The main challenge is the cost of the proceedings. The parties to the dispute will be compelled to pay the cost of the location where the proceedings will take place and the Arbitrator. The expensive nature of arbitration proceedings is a barrier to justice because parties may fail to complete the proceeding after it has began because of financial constraints. However, it is prudent that the parties have sufficient knowledge about the cost of the proceeding before it commences. The binding character of the arbitral rulings is also a challenge to the parties in the case. This implies that if a party is not satisfied with an outcome they are compelled to abide to the award that has been rendered. It has also been argued that in arbitration proceeding the parties do not have the opportunity to appeal the dispute to a higher court. In addition in the arbitration process there is always a winner and a l oser at the end of the proceeding unlike in mediation where the outcome reflects the interest of the both parties ion dispute. Even the face of the challenges that have been explained above it is conceded that the advantages of the arbitral process preponderate over the disadvantages. It is submitted that the Rack and Roll dispute will be brought to finality and parties are likely to attain justice through the arbitration as a dispute resolution mechanism. It should be borne in mind that the qualities that attributes and ethical obligations which have their force from legislations should be embraced by the arbitrators in any arbitration proceeding. The parties in dispute should be left to enjoy the flexible nature of arbitration but with a strict adherence to arbitration agreement and statutory procedures. Conversely, it may be argued that arbitration in New Zealand is subject to many legal regulations and this undermines the rigid quality that is associated with it. The binding nature of final outcome in arbitration gives it an intimate relationship with litigation which is differentiated from Alternative D ispute Resolution. Above all the prevailing argument of this essay is that Rack and Roll will be satisfied with the outcome because of the innate quality of the process. References Anthony, W. (2010). Arbitration, Brookers Arbitration Act 1996 (NZ) Hunt, R. (2000). The Arbitrator Or Mediator As Dispute Manager Choosing Horses For Courses. Oint Annual Conference of IAMA and AMINZ. Retrieved May 24, 2017, from https://www.roberthuntbarrister.com/Horsescourses.pdf Kiser, R. (2010). Beyond right and wrong: The power of effective decision making for attorneys and clients. Springer Science Business Media. Paulsson, J. (2013). The idea of arbitration. Oxford University Press. Re Tiki Village International Ltd [1994]2 Qd.R. 6 Rogers, C. A. (2005). Regulating international arbitrators: A functional approach to developing standards of conduct. Stan. J. Int'l L., 41, 53. The Arbitrator (1999) Vol 18 Thomas, T. H. (1993). Using Arbitration to Avoid Litigation. Labor Law Journal, 44(1), 3. William Essery Sons Pty. Ltd. v. South Australian Housing Trust, (1980) 24 SASR 213. 14.