Arbitration Practice in Construction Contracts 3rd Edition by Douglas A. Stephenson

By Douglas A. Stephenson

Considers each one level during an arbitration intimately, from the claimant's selection to hunt the technique of resolving a dispute to the arbitrator's award, explaining basically and concisely what's anticipated of the claimant, respondent and arbitrator and while.

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It follows that there could be difficulty in establishing the existence of a valid arbitration agreement where the contract is an oral one, or where for example a written tender has been accepted orally or impliedly. However, where there is an oral or implied acceptance of a written tender or offer which is expressly based upon a standard form incorporating an arbitration agreement, it is arguable that the standard form, and hence the arbitration agreement, is incorporated in the contract. AGREEMENTS TO REFER Arbitration agreements made before a dispute arises, such as those incorporated in the ICE, FIDIC and JCT forms of contract and in the Page 9 FCEC form of subcontract are often termed ‘agreements to refer’ because they provide for the reference to arbitration of any dispute that may arise from the contract.

But perhaps the most important function of the 1950 Act is that contained in section 26 wherein an arbitration award may effectively be converted into a judgment of the High Court. One of the main features of arbitration under English law is the emphasis laid upon compliance with the law. The danger has long been recognized that arbitrators, who are generally not qualified legally and who conduct proceedings in private, may stray from the law of the land, developing their own fund of ‘case law’ based upon their own concept of equity.

While true, this is not usually a major factor in the total costs of the proceedings: the arbitrator’s charges are often much less than those of the parties’ solicitors and counsel. Furthermore, where technical matters are involved it is likely that experts will be needed to present such matters to a judge, but not to a technically qualified arbitrator. Again, proceedings in court are likely to be more protracted, and hence more costly, than in arbitration. Economy is not achieved automatically by use of arbitration rather than litigation, but it may be achieved where the parties act sensibly in choosing the form of the proceedings and of their representation.

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