Using a direct access barrister in arbitration

Niraj Modha, a barrister at Tanfield Chambers, provides information and offers tips on instructing a direct access barrister in arbitration

Arbitration has been used for centuries, across different trades, sectors, and cultures. What is arbitration, how does it compare with litigation, and how can a direct access barrister help you?

What is arbitration?

Arbitration is a method of resolving disputes. It is an alternative to litigation. It is a private and confidential  process, which results in a final outcome (called an ‘award'). It can often be both quicker and cheaper to resolve a dispute using arbitration, when contrasted with going to court. Arbitration is used to resolve commercial disputes between (and within) companies, online consumer disputes, disagreements between property owners and occupiers, and claims by investors against states.

How does arbitration compare with litigation?

Arbitration is similar to litigation in several respects. 

  1. An arbitration results in a legally binding outcome. An award can be enforced in much the same way as a court judgment.
  2. An arbitral ‘tribunal' (the name given to the single ‘arbitrator' or ‘arbitrators' who are selected to decide a dispute) has rules and procedures. These must be followed in order for the process to run smoothly. The courts also operate according to certain rules, which must be followed by both represented and unrepresented litigants.
  3. Generally, an arbitrator will be required to decide a dispute according to the law of a particular country. This means that you may need legal advice and representation during the arbitration, just as you would if you were involved in court proceedings.

However, arbitration is different from litigation in a number of important ways. 

  1. The parties involved in a dispute must agree to arbitrate. If there is no agreement (whether before or after a dispute has arisen), then there can be no arbitration.
  2. Depending on the terms of the arbitration agreement, the parties are able to choose their own arbitrator. This is unlike court proceedings, where the judge dealing with a case might not be a specialist in the relevant area of law, or he or she may have a limited period of time in which to hear and decide a dispute.
  3. After a tribunal has delivered an award, it is often be exceptionally difficult for a party to challenge that award. This is unlike a court judgment, which typically may be appealed on certain grounds.

It is worth noting here that arbitration is also different from mediation. Mediation can be another effective method of resolving a dispute without going through a long or expensive trial. However, there is never a guarantee with mediation that it will result in a final, binding compromise. If mediation fails, and if the parties are involved in court proceedings, costs can mount substantially.

How can a direct access barrister help?

A direct access barrister can help you at each stage of the arbitration process. You can instruct a direct access barrister if you are an individual or organisation in England and Wales, or even if you are based in another country.

You might consider instructing a direct access barrister if you need help with the following:

  • Are you unsure whether you can use arbitration? Often, the contract between you or your business and the other party will contain a dispute resolution clause. The effect of this clause may be unclear. If there is no such clause or contract, you may want to enter into a ‘post–dispute arbitration agreement'. A direct
    access barrister can help you with identifying whether there is a binding arbitration agreement, deciding whether arbitration or another method of resolving the dispute is appropriate, or by drafting an arbitration agreement.
  • Do you want to know the strengths and weaknesses of your case? It is often useful to have a better idea of how likely you are to win your case. This could then help you decide how best to proceed with resolving a dispute. A direct access barrister can give you a legal opinion on the prospects of your claim (or defence)
  • Do you need practical advice on the steps you have to take? The arbitration process usually begins with parties exchanging notices and requesting (or agreeing to) the appointment of an arbitrator. There are rarely standard forms available which help you to do this, so it can be tricky to work out which documents you
    need to produce and what they need to say. Therefore, you may need assistance with drafting documents, such as a request for arbitration, a response or reply, an application, or a letter of instruction to an expert. A direct access barrister can draft and review all of these documents.
  • Do you need specialist advocacy at a hearing? There is no requirement for a party to have legal representation during the course of an arbitration. Indeed, some arbitrations are carried out on paper, without a hearing. However, it may increase your chances of success, particularly in a higher value or complex arbitration, if you are legally represented. A direct barrister can represent you at a hearing, whether the hearing is taking place in England or in another country. He or she can help to prepare the documents that the tribunal will see, cross–examine witnesses, and make arguments on your behalf.

If you need assistance from a direct access barrister for your arbitration, search on the Bar Council Direct Access Portal website using the keyword "arbitration”.

Niraj Modha is a barrister specialising in commercial and property litigation and arbitration.