The arbitrator refused to follow Bristol Airport plc v. Powdrill et al. [1990] 2 ALL ER 493 (CA) on whether court leave or the consent of a director of an insolvent airline was required before an airport could exercise its right to own aircraft for unpaid airport charges. The court in the Bristol Airport case ruled that the words “no other proceedings may be commenced or continued” meant either a court case or a quasi-legal proceeding such as arbitration. Bristol Airport Court also said that “judicial or other proceedings” would include proceedings other than (judicial) legal proceedings. However, the arbitrator in Chetty rejected this interpretation on the basis that section 133 explicitly refers to a judicial proceeding and not just a proceeding. The arbitrator then referred to the Van Zyl case and admitted that a “judicial proceeding” was a “suit” and, on that basis, concluded that arbitration did not constitute judicial proceedings within the meaning of Article 133. At a specific level, the exclusion of arbitration from the moratorium will result in the process of rescuing companies not being an effective procedure within the meaning of Article 7(k). This is mainly due to the fact that a company in the rescue of the company could be subject to the costs and requirements for the management time of an arbitration without the consent of the BRP or without the authorization of absence of the court. This burden could force a company into rescuing the business from liquidation and negate the entire purpose and purpose of section 133. The moratorium granted by Article 133 is intended to give the company a break so that it can find a solution to the financial problems it faces and the BRP can design and implement a company rescue plan to achieve this. I therefore maintain that arbitration is a judicial proceeding within the meaning of section 133 of the Companies Act, which requires the consent of the BRP or the leave of the tribunal.
It was to be hoped that other case law would clarify that issue in the near future. In general, arbitration is inherently non-appealable, in the ordinary sense of the word. In most countries, however, the court retains a supervisory role in setting aside arbitral awards in extreme cases such as fraud or in cases of serious legal irregularities on the part of the court. Only domestic arbitral awards are subject to set aside proceedings. [Citation needed] Arbitration, a form of alternative dispute resolution (ADR), is a means of resolving disputes outside of the courts. The dispute will be decided by one or more persons (the “arbitrators”, the “arbitrators” or the “arbitral tribunals”) who will make the “award”. An arbitral award is legally binding on both parties and enforceable in court. [1] In keeping with the informal nature of arbitration, the law generally seeks to maintain the validity of arbitration clauses even if they do not have the normal formal language associated with legal contracts. Clauses that have been maintained include: The courts have also upheld clauses that establish the settlement of disputes in a manner other than in accordance with a particular legal system. These include provisions such as: it should be borne in mind that the stay of judicial proceedings, including arbitration against a company in liquidation, does not affect the claimant, since insolvency law provides a mechanism by which creditors can prove their claims other than through litigation – namely by filing an affidavit on the claim. Similar considerations apply to business rescue. The Korean Arbitration Law is the most important arbitration law in the Republic of Korea.
The official body that settles disputes through arbitration is the Korean Commercial Arbitration Board. Lawyers and companies in Korea increasingly prefer arbitration to litigation. [23] The number of arbitration proceedings in Korea is increasing year by year. [24] Although arbitration is a private hearing, it is still a judicial hearing and its outcome is binding on the parties. A party`s claim should not be distinguished according to whether it was brought by subpoena or arbitration – both serve the same purpose and have the same effect on a party`s rights and obligations. Arbitration has a financial impact on a company`s chances of success in rescuing the company, and the written consent of the BRP or the leave of the court should be required before arbitration can be initiated against the company. A business restructuring process is initiated so that a company`s business can be restructured so that it can continue to operate as a profitable business. To do this, controls must be put in place and the moratorium protects a company in business rescue by ensuring that a third party goes through the BRP or the court to assert its rights. The effectiveness of Chapter 6 would be seriously compromised if a third party could fully arbitrate the company in rescuing the company. The courts have tried to give meaning to the term “judicial proceedings”. Section 359(1) of the Old Companies Act provides that in the event of liquidation of a company, all civil proceedings against the company are automatically suspended until a liquidator is appointed. Subsection 359(2) states that within four weeks after the appointment of a liquidator, any person who intends to continue legal proceedings against a corporation suspended by winding-up and any person who intends to commence legal proceedings to assert claims against the corporation that arose before the commencement of liquidation must give at least three weeks` written notice before continuing or initiating the proceedings.
There are pros and cons in arbitration and court proceedings. Parties often attempt to resolve disputes through arbitration, as a number of potential advantages over legal proceedings are perceived. Companies often require arbitration with their customers, but prefer the advantages of the courts in disputes with competitors:[4][review failed] Arbitration lawPresentation of critical importance is ยง 5 para. 2 of the Arbitration Act, which stipulates that in the case of a company party to such arbitration, in the event of a request for liquidation or subordination of the company under judicial direction or liquidation or subordination of the legal person, the provisions of a law concerning the liquidation or judicial management of the entity concerned apply in the same way, as if the reference of a dispute to arbitration were a legal action or proceeding within the meaning of such a right. 2. Arbitration is a method of dispute resolution in which a neutral third party is appointed to investigate the dispute, hear the parties, and then make recommendations. On the other hand, litigation is described as a legal process in which the parties resort to the court to settle disputes. Arbitration is a form of what is commonly referred to as alternative dispute resolution. This is a process in which both parties come together and agree to follow and respect the arbitrator`s decision.
It`s a way to try instead of filing a complaint and going to court to resolve a dispute. The arbitrator is usually a lawyer who is familiar with the field of law to be decided. The arbitrator`s decision is legally binding on both parties, although in some cases decisions may be appealed. Arbitration is used as a private form of settlement between the parties by appointing persons as arbitrators, which is considered a useful means of immediate and fair settlement of disputes that may arise from commercial transactions in the field of goods and services.