About Hong Kong legal system

2006-10-14 4:17 am
Please answer the assigned question and then present it out. (40%)

What is arbitration?

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回答 (1)

2006-10-14 4:22 am
✔ 最佳答案
Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. In the United States, the term is also used to refer to non-binding arbitration, a process in which the final award does not bind the parties.
Arbitration is today most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions. It is also used in some countries to resolve other types of disputes, such as labour disputes, consumer disputes or family disputes, and for the resolution of certain disputes between states and between investors and states.
History
It is not definitively known when formal non-judicial arbitration of disputes first commenced. Under English law, the first legislation relating to arbitration to be passed into law was the Arbitration Act 1697, but the practice was already commonplace prior to the enacting of the legislation. However, the combination of the industrial revolution and the growth of international trade brought a greater level of sophistication to a process that had previously been largely ad hoc in relation to disputes between merchants resolved under the auspices of the lex mercatoria.
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Nature of Arbitration
Arbitration is, essentially, another form of dispute resolution. Arbitration is not the same as:

judicial proceedings, although in some jurisdictions, court proceedings are sometimes referred as arbitrations[1]
alternative dispute resolution
expert determination
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Advantages of arbitration
Parties seek to arbitrate because of a number of potential advantages of the arbitral process over judicial proceedings:

when the subject matter of the dispute is highly technical, person with the appropriate degree of technical skill can be chosen as arbitrators
arbitration can be much faster that utilising the courts
there can be costs savings
arbitration proceedings are generally private
the arbitral process enjoys a greater degree of flexibility than the courts
because of the provisions of the New York Convention 1958, arbitration awards are generally much easier to enforce abroad than judgments
in most legal systems, there is a very limited appeals process, that reduces the scope for lengthy litigation
However, some of the disadvantages of arbitration can be that:

the parties need to pay the arbitrators, which adds an additional layer of legal cost
although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays
in some legal systems, arbitral awards have fewer enforcement remedies that judgments
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Arbitrability
By their nature, the subject matter of some disputes are not capable or arbitration. Matters relating to crimes, status and family law are generally not considered to be arbitrable. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be determined by an arbitration tribunal, but the validity of a patent could not (as this is a matter of public registration, which the panel has no power to rectify).
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Seat of the arbitration
Most legal systems recognise the concept of a "seat" of the arbitration, which is a geographical and legal jurisdiction to which the arbitration is tied. The seat will normally determine the procedural rules which the arbitration follows, and the courts which exercise jurisdiction over the seat will have a supervisory role over the conduct of the arbitration.


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