Arbitrability of a Dispute – Does a Judge or Arbitrator Decide?

If you are involved in a dispute, the initial sentiment is to file a lawsuit and let a judge or jury decide the merits if it is not resolved in the interim. Another way to resolve a dispute is through binding arbitration. Frankly, with the uncertainty surrounding the judicial system right now, arbitration is not a bad way to go and likely the more efficient way to go, irrespective of the added administrative costs. The key with arbitration is that it is a creature of contract. This means there needs to be an arbitration provision in an agreement for the...

02 October

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Arbitration and the Lax Rules of Evidence

Posted by David Adelstein

in Evidence

I'm sure you have heard of arbitration. Arbitration is a method of dispute resolution. If parties want to arbitrate their dispute as opposed to litigate their dispute in court, they need to include an arbitration provision in their contract. This is because arbitration is a creature of contract and you cannot be compelled to arbitrate a dispute that you did not contractually agree to arbitrate as the method of dispute resolution. (If you are arbitrating your dispute, then you are not litigating your dispute in court.) In arbitration, the rules of evidence are lax. For example, Rules 35 and 36 of the Construction Industry...