FREQUENTLY ASKED QUESTIONS
Arbitration is a private form of dispute resolution which is suitable for domestic and international commercial disputes. An arbitrator is chosen by the parties to hear and determine the dispute and they will hand down a final and binding arbitral award which will be enforceable in court.
The decision-maker is an arbitrator, not a judge, the proceeding is private and confidential and it can be quicker and more flexible than litigation in court. Because of the tight timeframes in the Arbitration Victoria Rules (120 days from commencement to Award or 90 days for “documents-only” arbitrations), the parties must be prepared to actively participate and engage in the process. If a party chooses not to participate, for example, then the Arbitrator can continue with the arbitration and make an Award in the party’s absence. The Arbitrator will make programming orders for the conduct of the arbitration and the parties will be at liberty to present evidence and make submissions, including at the final hearing.
An award is the Arbitrator’s written decision – it is like a judgement of a Court.
No, once the Arbitrator has been appointed then he or she has jurisdiction to decide the case. And, once the Arbitrator makes the determination the parties have to abide by the Arbitrator’s Award, that is the decision, and their rights and obligations will be set out in the Award.
The Arbitrator’s fees are fixed and agreed upon at the outset of the arbitration. The fees that the Arbitrator will charge are capped and are as set out in the User Manual: [link]. Usually, each party will pay a deposit upfront for the Arbitrator’s fees, and the Arbitrator will ultimately determine who is liable for the cost of the arbitration. Because of the short time frames involved, it is quite likely that the parties will spend less than they would in court (which is likely to take 2 or perhaps 3 times as long as the anticipated 120-day arbitral process).
Once the Arbitrator hands down the Award, the respondent will usually comply (by, for example, paying the amount which the Arbitrator has decided must be paid). If the losing party refuses to comply with the Award then the winning party can go to court to have the Award enforced. The process is usually straightforward and sections 35 and 36 of the Commercial Arbitration Act 2011 apply.
The short answer is no. However, an in-person party may be at a disadvantage in a commercial arbitration against a represented party. A lawyer will know the process and how to prepare the relevant documents. This may be difficult for a non-represented party. In addition, the Arbitrator’s role is that of an independent umpire who will make a decision based on the evidence presented and the submissions that each party makes. The Arbitrator’s role is to assess the evidence, give each party a fair hearing, and make a decision. It is not the Arbitrator’s role to assist a party to present its case.
The Arbitrator may or may not make an order for disclosure of documents depending on the facts of the case. If an order for disclosure is made, it is likely to be limited and targeted, because of the tight timeframes involved and because of the emphasis on speed and reduced costs. The Evidence Act 2008 (Vic) does not apply and so there are no strict rules of evidence. The hearsay rule, for example, does not apply. That said, the Arbitrator will be an experienced barrister or solicitor so the process will have some similarity to a court hearing, in the sense that the parties will present evidence and make submissions to the arbitrator, as would be the case in court.
Arbitration Victoria will choose the arbitrator.
Only 1 arbitrator is permitted under the Arbitration Victoria Rules.