3.614 Arbitration

Question 0

Definition of arbitration (1)

Answer 0

Process where parties with the encouragement of the law enable to arrange for taking and abiding by the judgement of a selected person or persons without taking the matter to the established courts.

Question 1

Consensual prior agreement. (2)

Answer 1

A

Agree to take current or future disagreement to the impartial judgement of a third party.

B

They also agree that the finding will be final and binding.

Question 2

Advantages for Arbitration (7)

Answer 2

A

Arbitrator chosen because is an expert

B

No requirement for legal representation.

C

Process is flexible to suit

D

Arbitrators decision is final

E

Less expensive

F

Quick to start and finish

G

Private, so no bad press.

Question 3

Public sector opinion on arbitration (1)

Answer 3

Prefer courts as can appeal and that is seen as in interest of public

Question 4

SA legal system and arbitration (1)

Answer 4

A

Accepts the system.

B

Assists through arbitration act of 1965

Question 5

Qualifications of arbitrator (2)

Answer 5

A

Above 18

B

Sane

Question 6

It is best recommended to appoint an ……..for arbitrator possition (1)

Answer 6

A

Expert

Question 7

Characteristics of arbitration agreement (4)

Answer 7

A

Parties must have contractual agreement

B

They must seriously intend the consequences of their decision

C

Neither may unilaterally renounce the undertaking

D

Agreement is legal and enforceable if in writing or oral

Question 9

Arbitration Act Provisions (9)

Answer 9

A

Courts may refuse when there is valid arbitration agreement.

B

Agreement is not terminated by insolvency or death.

C

Where the parties cannot agree on arbitrator the courts may appoint one.

D

On application the courts may express an opinion on a point of law if asked by arbitrator

E

Award is final and normally no appeal.

F

Court might refer matter back to arbitrator if there are areas that require clarity

G

Court might set aside award if reprehensible misconduct by arbitrator.

H

Proceedings usually set by arbitrator provided has agreement by parties

Question 10

Dispute resolution of the JBCC Principle building Agreement

Answer 10

Title

Question 11

Any disagreement between all parties (2)

Answer 11

A

Scope in JBCC is extremely wide

B

Covers any disputes between the employer and his contractor and the consultants.

Question 12

The dispute resolution survives…..

Answer 12

A

As the dispute resolution survives the cancellation of the contract, therefore a dispute as to whether the cancelling party had the right to do so comes under the scope of the clause.

Question 13

If the contract is invalid the the impact on the arbitration is what….(1)

Answer 13

A

If one of the parties was to question the validity of the contract, an arbitrator would have no jurisdiction as the very legal vehicle giving his remit is under question.

Question 14

Disagreement is a prerequisite for arbitration (1)

Answer 14

A

To come into being the disagreement needs to be genuine with the parties holding conflicting points of view and not merely a failure to honour a contractual agreement.

Question 15

Initiating the proceedings

Answer 15

Title

Question 16

Carefull consideration before embarking on proceedings. (3)

Answer 16

A

Clause 40 of the JBCC PBA

B

They remove from the principle agent the right to make decisions.

C

The ensuing process will be time consuming and expensive.

Question 17

Defining the parties (3)

Answer 17

A

Before a dispute is formally declared it is called a disagreement.

B

It wil be a disagreement of the employer and his agents one one hand and the contractor on the other.

C

Invariably the agent and the contractor are at loggerheads, but remember the contract is between the client and the contractor.

Question 18

Dispute between the employer and his agent are covered….(2)

Answer 18

A

As the agent is not party to the construction contract.

B

Any form of dispute needs to be resolved by means of the agreement between the employer and agent.

Question 19

Disagreement and Dispute defined. (3)

Answer 19

A

Difference, is a difference of opinion between an employer, his agents or both, with the Contractor.

B

Only when the PA has been given the instruction to give a written instruction and it is rejected or he fails to honour the time difference a disagreement mature into a dispute.

C

At this point the formal process of mediation or arbitration may be invoked.

Question 20

Award

Answer 20

Title

Question 21

Decision in writing (1)

Answer 21

A

The decision of the arbitrator needs to be in writing in a document called an award

Question 22

Performance lacks finality (3)

Answer 22

A

The arbitrator will almost never award specific performance.

B

Rather a monetary sum allowing the aggrieved to have word repaired by another

C

Reason is that if ask same chap the work will be to same standard

Question 23

Reasons not required by law and not often given

Answer 23

A

Arbitration act does not require the arbitrator to give reasons for his award.

B

Must however do so when required by parties

Question 24

Cost of the arbitration proceedings (3)

Answer 24

A

Arbitrator include in award who pays

B

Principle cost that of arbitrator and lawyers

C

Usual rule is that loser pays cost

Question 25

Enforcement of award (2)

Answer 25

A

Either party can apply to court to make an order of court

B

In terms of arbitration act

Question 26

Power of court to remit or set aside the award (3)

Answer 26

A

Award is final and binding

B

May be referred back to arbitrator

C

May be set aside by court if gross misconduct

Question 27

Continued performance of obligations (1)

Answer 27

A

All parties must continue to fulfill their obligations

Question 28

Survival of arbitration clause

Answer 28

A

Even if agreement is cancelled, the arbitration clause survives until all differences are settled