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Nomenclature

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific "types" of arbitration procedure have developed, particularly in North America.

  • Judicial Arbitration is, usually, not arbitration at all, but merely a court process which refers to itself as arbitration, such as small claims arbitration before the County Courts in the United Kingdom.[2
  • Online Arbitration is, a form of arbitration that occurs exclusively online. There is currently an assumption that online arbitration is admissible under the New York Convention and the E-Commerce Directive, but this has not been legally verified.[41] Since arbitration is based on a contractual agreement between the parties, an online process without a regulatory framework may generate a significant number of challenges from consumers and other weaker parties if due process cannot be assured.
  • High-Low Arbitration, or Bracketed Arbitration, is an arbitration wherein the parties to the dispute agree in advance the limits within which the arbitral tribunal must render its award. It is only generally useful where liability is not in dispute, and the only issue between the party is the amount of compensation. If the award is lower than the agreed minimum, then the defendant only need pay the lower limit; if the award is higher than the agreed maximum, the claimant will receive the upper limit. If the award falls within the agreed range, then the parties are bound by the actual award amount. Practice varies as to whether the figures may or may not be revealed to the tribunal, or whether the tribunal is even advised of the parties' agreement.
  • Binding Arbitration is a form of arbitration where the decision by the arbitrator is legally binding and enforceable, similar to a court order.
  • Non-Binding Arbitration is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement. State law may automatically make a non-binding arbitration binding, if, for example, the non-binding arbitration is court-ordered, and no party requests a trial de novo (as if the arbitration had not been held).[42]
  •  Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979. This form of arbitration has been increasingly seen in resolving international tax disputes, especially in the context of deciding on the Transfer Pricing margins. This form of arbitration is also known (particularly in the United States) as Baseball Arbitration. It takes its name from a practice which arose in relation to salary arbitration in Major League Baseball.
  • Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal's award.
    Such forms of "Last Offer Arbitration" can also be combined with mediation to create MEDALOA hybrid processes (Mediation followed by Last Offer Arbitration).[43]
    History
    England
    Arbitration in its common law form developed in England; in the Middle Ages, tribunals such as the Courts of the Boroughs, of the Fair and of the Staple arose as the Royal Courts were not designed for trade disputes, and trade with foreigners was otherwise unenforceable.[44] In the mid-16th century, common law courts developed contract law and the Admiralty court became accessible for disputes with foreign merchants, broadening the venues for trade disputes.[44] Courts became suspicious of arbitration; for example, in Kill v. Hollister (1746), an English court ruled that the arbitration agreement could 'oust' courts of law and equity of jurisdiction.[45] Merchants, however, retained provisions to settle disputes among themselves, but tension between the arbitration proceedings and courts eventually resulted in the Common Law Procedure Act 1854 which provided for the appointment of arbitrators and umpires, allowed courts to 'stay proceedings' when a disputant filed a suit despite an agreement to arbitrate, and provided a process for arbitrators to submit questions to a court.[44] Later, the Arbitration Act 1889 was passed, followed by other Arbitration Acts in 1950, 1975, 1979 and 1996. Arbitration Act 1979 in particular limited judicial review for arbitration awards.[44]

United States
Arbitration was common in the early United States, with George Washington serving as an arbiter on an occasion.[44] The United States had a notable difference from England, however, in that unlike England, its courts generally did not enforce executory agreements (binding predispute agreements) to arbitrate.[46] This meant that prior to an award, a claimant could sue in court even if they had contractually agreed to settle disputes by arbitration. After the award, courts reviewed the judgment, but generally deferred to the arbitration,[46] although the practice was not consistent.[45]
The lack of enforcement of predispose agreements led to the Federal Arbitration Act of 1925,[45][46] with New York leading with a state law enforcing predispose agreements.[44] In 1921, the American Bar Association drafted the Federal Arbitration Act based on the New York law, which was passed in 1925 with minor changes.[44] In the next decade, the American Arbitration Association promoted rules and facilitated arbitrations through appointments.[44]
See also

  • Alternative dispute resolution
  • American Arbitration Association
  • Arbitral tribunal
  •  Arbitration award
  • Arbitration in the United States of America
  •  Arbitration Roundtable of Toronto
  • Conflict resolution research
  •  Dispute resolution organization
  • Expert determination
  • International arbitration
  • Mandatory arbitration
  • National Academy of Arbitrators
  • National Arbitration Forum
  • Society of Construction Arbitrators
  • UNCITRAL Model Law on International Commercial Arbitration
  • Ukrainian Arbitration Association
  • Uppsala Conflict Data Program
    Notes
    1.    Jump up^ O'Sullivan, Arthur; Sheffrin, Steven M. (2003). Economics: Principles in Action. Upper Saddle River, New Jersey: Pearson Prentice Hall. p. 324. ISBN 0-13-063085-3.
    2.    ^ Jump up to:a b In the United Kingdom, small claims in the county court are dealt with by a procedure called "small claims arbitration", although the proceedings are held in front of a district judge, paid for by the state. In Russia, the courts dealing with commercial disputes are referred to as the Supreme Court of Arbitration of the Russian Federation, although it is not an arbitral tribunal in the true sense of the word.
    3.    Jump up^ Although all attempts to determine disputes outside of the courts are "alternative dispute resolution" in the literal sense, ADR in the technical legal sense, is the process whereby an attempt is made to reach a common middle ground through an independent mediator as a basis for a binding settlement. In direct contrast, arbitration is an adversarial process to determine a winner and a loser in relation to the rights and wrongs of a dispute.
    4.    Jump up^ Hernández, Gabrielle Orum (2017-10-09). "Can Arbitration Solve Tech Sector's Litigation Cost Concerns". Legaltech News.
    5.    ^ Jump up to:a b "The Supreme Court's retired, but hardly retiring, Ian Binnie". The Globe and Mail. Toronto. 15 June 2012.
    6.    Jump up^ See for example the arbitration service offered by Falcon Chambers, the specialist property barristers chambers - www.falcon-chambersarbitration.com.
    7.    Jump up^ Cologne, Prof. Dr. Klaus Peter Berger, LL.M., University of. "Principle XIII.5.1 - Confidentiality - Trans-Lex.org". www.trans-lex.org.
    8.    Jump up^ Cf. e.g. Section 1030 subsection 1 of the German Zivilprozessordnung.
    9.    Jump up^ Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 268 (1 April 2011) AustLII
    10.    Jump up^ Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)
    11.    Jump up^ Section 1030 subsection 2 Zivilprozessordnung
    12.    Jump up^ To be correct: certain form, as defined by statute, of an electronic signature using a chip card and a PIN code is also sufficient
    13.    Jump up^ Section 1031 subesction 5 of the Zivilprozessordnung. The restriction does not apply to notarized agreements, as it is presumed that the notary public will have well informed the consumer about the content and its implications.
    14.    Jump up^ Swiss Bank Corporation v Novrissiysk Shipping [1995] 1 Lloyd's Rep 202
    15.    Jump up^ Hobbs Padgett & Co v J C Kirkland (1969) 113 SJ 832
    16.    Jump up^ Mangistaumunaigaz Oil Production v United Kingdom World Trade [1995] 1 Lloyd's Rep 617
    17.    Jump up^ Norske Atlas Insurance Co v London General Insurance Co (1927) 28 Lloyds List Rep 104
    18.    Jump up^ Deutsche Schachtbau v R'As al-Khaimah National Oil Co [1990] 1 AC 295
    19.    Jump up^ For example, under English law see Heyman v Darwins Ltd. [1942] AC 356
    20.    Jump up^ Tariq Hammouri, Dima A. Khleifat, and Qais A. Mahafzah, Arbitration and Mediation in the Southern Mediterranean Countries: Jordan, Kluwer Law International, Wolters Kluwer - Netherlands, Volume 2, Number 1, January 2007, pp. 69-88.
    21.    ^ Jump up to:a b c Horton D. (2012). Federal Arbitration Act Preemption, Purposivism, and State Public Policy. Forthcoming in Georgetown Law Journal.
    22.    Jump up^ Berner, Robert (2009-07-19). "Big Arbitration Firm Pulls Out of Credit Card Business". Business Week. Retrieved 3 March 2013.
    23.    Jump up^ John P. Campbell, "Taft, Roosevelt, and the Arbitration Treaties of 1911," Journal of American History (1966) 53#2 pp: 279-298 in JSTOR.
    24.    Jump up^ Bruce W. Jentleson and Thomas G Paterson, eds. Encyclopedia of U.S. Foreign Relations (1997) 1: pp 87-88
    25.    Jump up^ Nelson M. Blake, "The Olney-Pauncefote Treaty of 1897," American Historical Review, (1945) 50#2 pp. 228-243 in JSTOR
    26.    Jump up^ Genevieve Forbes Herrick; John Origen Herrick (2005) [1925]. The Life of William Jennings Bryan. Kessinger Publishing. p. 280.
    27.    Jump up^ Cordero-Moss, Giuditta (2014). International Commercial Contracts.
    28.    Jump up^ Article 1 of the 1958 New York Convention
    29.    ^ Jump up to:a b Argen, Robert (2015-01-01). "Ending Blind Spot Justice: Broadening the Transparency Trend in International Arbitration". Rochester, NY: Social Science Research Network. SSRN 2393188? .
    30.    Jump up^ Tupman, "Case Studies in the Jurisdiction of the International Centre for Settlement of Investment Disputes" (1986) 35 ICLQ 813
    31.    Jump up^ Dallal v Bank Mellat [1986] 1 QB 441
    32.    Jump up^ For example, all arbitral awards issued by the ICC have to be reviewed internally before being handed down, which helps certainty and improves the quality of awards, but leads to delay and expense.
    33.    Jump up^ For example, in England these are codified in section 33 of the Arbitration Act 1996
    34.    Jump up^ The expression appears in the majority judgment in the U.S. Supreme Courtdecision in Wilko v Swan 346 US 427 (1953)
    35.    Jump up^ "Guide to Arbitration in New York" (PDF). CMS Legal. Retrieved 8 May 2012.
    36.    Jump up^ "Cost calculator - ICC - International Chamber of Commerce".
    37.    Jump up^ "Singapore International Arbitration Centre". www.siac.org.sg.
    38.    Jump up^ "International Arbitration - International Arbitration Information". International Arbitration Attorney Network.
    39.    Jump up^ "Full Arbitration Cost Calculators".
    40.    Jump up^ "Arbitration in New York" (PDF). CMS Legal. Retrieved 10 May 2012.
    41.    Jump up^ R. Morek "The Regulatory Framework for Online Dispute Resolution: A Critical View" (2006) 38 Tol. L. Rev. 165.
    42.    Jump up^ E.g., Section 44.103, Florida Statutes.
    43.    Jump up^http://www.altenburger.ch/uploads/tx_altenburger/jl_2007_The_Interaction_Between_Arbitration_and_Mediation.pdf.
    44.    ^ Jump up to:a b c d e f g h Noussia, Dr Kyriaki (2010-01-01). The History, Importance and Modern Use of Arbitration. Springer Berlin Heidelberg. pp. 11–17. ISBN 9783642102233. doi:10.1007/978-3-642-10224-0_2.
    45.    ^ Jump up to:a b c "Judicial Enforcement of Pre-Dispute Arbitration Agreements: Back to the Future". ResearchGate. Retrieved 2016-03-21.
    46.    ^ Jump up to:a b c "State regulation of arbitration proceedings: judicial review of Arbitration Awards by State Courts". ResearchGate. Retrieved 2016-03-21.

Sources for the History of Arbitration: A Bibliographical Introduction
No general history of arbitration has yet been written, though the literature is richer than would appear from a search in the indexes and bibliographies. Some of the growing number of journals devoted to arbitration and other methods of resolving disputes alternative to litigation have published serious attempts to show how those methods have developed or how they operated at another time. But the modern literature is not opulent. However, studies of high quality are occasionally and increasingly to be found in those journals and in others which publish the work of professional historians, not only legal historians.
Legal historians in Common Law jurisdictions, perhaps because of the wealth of their primary sources, have concentrated their attention on the development of the Common Law and the royal courts. Even there, had they been looking for it, they would have found ample evidence of the normal and natural...

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