Arbitration Clauses in Adhesion Contracts

International Journal of Interdisciplinary Research and Innovations, 2016

Arbitration is a procedure that efficiently resolves disputes between parties. As alternative procedure, arbitration has begun to dominate globally in disputes between businesses. More complicated disputes and those with larger amounts, all over the world are solved by arbitration tribunals. While in economic terms, arbitration is the process of taking advantage of price differences in money, precious metals or stocks. If we assume that buying and selling is to be fulfilled at the same time, then the arbitrator is not responsible for any risk. Positive differences between the sales price and the purchase price, is the benefit of an arbitrator. During the study of literature research we did the evaluation of arbitration made in economic and legal terms. Making clarification of arbitration, the article will include possible differences and similarities in these two different areas, additionally its application in the international field. 1. ARBITRAGE IN LEGAL ASPECT This chapter provides an introductory presentation on arbitration as a form of dispute resolution. Chapter describes the development of arbitration over time, its advantages and disadvantages compared with the judiciary and other forms of dispute resolution. 1.1. Summary for Arbitration: Disputes shown between the parties which are based on any contract or agreement for a long time have been resolved only by the competent court. But with the development of economy and trade, these disputes have evolved and therefore appeared the necessity for alternative and more efficient ways to resolve such disputes besides the courts. One of these methods is also arbitration. Although considered a new method and alternative way, arbitration along with mediation and negotiation, present methods that have been used since the earliest times to resolve disputes, thus we can say that these alternative methods are ancestors of the courts to which we turn today. Arbitration can be defined as an agreement between two or more persons, that some or all legal disputes which have arisen or which may arise between them, to subject to arbitration (Assembly of Kosovo, Law no. 02/L-75, Article 2). So, arbitration is based on a preliminary agreement whereby the parties agree that in case of dispute the resolution will be made in the midst of arbitration rather than court, this agreement explicitly excludes the jurisdiction of the courts and gives competence to arbitration. It should be noted that the arbitration agreement is valid only if it is written down. This order is beginning to popularize every day more and more because the businesses are aware that in addition to court proceedings, arbitration is a more informal, faster, cheaper and also more private and confidential. Arbitration compared with the proceedings has its advantages and disadvantages. Can be considered as priority the speed of dispute resolution, low cost, confidentiality, the expertise of the arbitrator in the relative field, the selection of arbitrators by the parties themselves and the decision shall be final and binding on the parties. While the shortcomings of arbitration can count impossibility of appeal against decisions of arbitrator, the possibility of verification of the actual situation is more limited compared to courts, arbitrators when necessary cannot take action against the parties, execution of the arbitration decision is more difficult compared to court " s decision.

Netherlands International Law Review, 1992

T. VARADY flexible, and speedy procedure, and it may apply the 'new lex mercatoria' as well. Arbitration may be shaped to meet the wishes of the parties, and it also gives more room for maneuvre in the search for a mutually acceptable compromise. In their book on international commercial arbitration in New York, dealing with the question 'Why arbitrate?', McClendon and Goodman state unequivocally: 'The most obvious advantage is party autonomy resulting from the fact that arbitration is the creature of a contract between the parties. ' 2 Arbitration owes its justification to its adaptability to party needs, but it also owes its very existence in each dispute to the will of the parties-and party autonomy has been the crucial tool in removing obstacles hampering the constitution and the functioning of arbitral tribunals. As was stated most clearly by Schmitthoff, "The first and foremost principle of law in commercial arbitration is that it is founded on the autonomy of the parties' will.' 3 One has to add that party autonomy has not remained the only mainstay of international commercial arbitration. Over the past decades a network of international instruments pertaining to international commercial arbitration has emerged, 4 as a result of which arbitration agreements have become reliable, while arbitration awards have become more efficient (more readily enforceable) than court decisions on the international scene. An important role in stabilizing the position of arbitration may also be ascribed to its institutionalization, assisted by model-rules. Courts have also become much more supportive of arbitration. The question I would like to raise in this essay is whether, in a moment of wellestablished strength and reputation, arbitration has remained faithful to its alliance with the parties-and their imperfections. A well-established mechanism tends to follow its own logic and regularities, instead of relying consistently on thesometimes inchoate-guidance given by the individual parties. The arbitration agreement, which enables the arbitrators to proceed and sets the course of such proceedings, is often incomplete, sometimes patchy, or even contradictory. Imperfections require correctives. At this point, the dividing line between assistance to the parties and assistance to the arbitration establishment becomes blurred. The temptation arises to facilitate arbitration, and to safeguard the logic 2.

Advantages and disadvantages of the ad hoc and institutional arbitration. What are the significant differences between them_, 2018

Today, arbitration plays a significant role on resolving international commercial disputes. According to Rene David, arbitration can be defined as a device whereby the settlement of a question which is of interest for two or more persons, is entrusted to one or more other persons – the arbitrator or arbitrators – who derive their powers from a private agreement, not from the authorities of a State and who are to proceed and decide the case on the basis of such agreement. Due to the fact that international trade and investment have been increasing rapidly, parties to international agreement might prefer to resolve their international disputes via arbitration before a foreign court system. As a consequence, experienced institutions such as International Court of Arbitration(“ICC”), the London Court of International Arbitration(“LCIA”), the American Arbitration Association (“AAA”) have emerged to provide impartial arbitration services, an effective treaty network guaranteeing the enforcement of arbitral agreement and awards with time tested rules for the conduct of arbitral proceedings.

2020

Dispute resolution through arbitration based on the prior alignment of the wills of the parties has long been known and has a long tradition. This specific way of resolving disputes has survived throughout this long time as a result of the trust that the parties have shown in it, presenting to the arbitration for resolution their disputes. The normative regulation of dispute resolution before international commercial arbitration in its current form is of modern times. As an alternative method of resolving disputes, arbitration manages to have recognition and implementation in both local and international society. Although it is said that resolving disputes in arbitration proceedings is the same as resolving disputes in regular courts, which puts into dilemma the conditions that must be met to begin resolving an issue in arbitration proceedings. One of these conditions is the arbitration agreement itself, which the parties themselves must establish an agreement to resolve their disputed issue through arbitration proceedings. Such a thing does not happen in the procedures conducted in the regular state courts, since in order to initiate the contentious issue in the regular court, only the plaintiff is enough to initiate the lawsuit and have a legal interest regarding the object of the lawsuit. The Arbitration Agreement is of special importance to the Arbitration Courts, which in case the parties are not created cannot resolve the issue in the arbitration procedure, since the parties themselves are the ones who with their agreement determine the essential elements of the arbitration procedure as well as themselves, the development of the case in arbitration proceedings.