FUTURE FACING DISPUTES IN A POST-PANDEMIC WORLD – TIME TO ARBITRATE?
As the UK ventures further into a post-Brexit and post-pandemic world, there is perhaps no better time to consider alternative dispute resolution (ADR) options, particularly in the authors’ view the benefits of arbitration as a dispute resolution vehicle.
Arbitration is an established and developed dispute resolution process, particularly in international disputes involving parties from more than one jurisdiction. Within the field of property disputes, arbitration is already frequently seen in the resolution of rent review claims and the hotel industry also seems to have taken up the arbitral model. Surprisingly, however, arbitration is not regularly used in the plethora of other property disputes that arise.
An arbitration can take place in two circumstances: where the underlying contract contains an arbitration referral clause from the outset, or where the parties later agree to have their dispute resolved by arbitration, by way of an arbitration agreement, for example.
Accordingly, although parties can agree to use arbitration once a dispute arises, this can be more far more difficult once battle lines have been drawn.
It is therefore crucial to consider at the contract drafting stage whether an arbitration referral clause might be suitable if a dispute were to arise. In practice, there may be myriad commercial points to get across the line when concluding a deal; yet getting the dispute resolution process right (when that is the last thing anyone is envisaging) can prove invaluable later on. If an arbitration clause has been included, then the parties can commence a process straightaway, avoiding delay.
Oct-Dec 2021 issue
CMS Cameron McKenna Nabarro LLP