What is Arbitration?
Arbitration is the settlement of a dispute between parties to a contract by a neutral party known as the arbitrator(s) without resulting to a court action. In most cases an arbitration becomes effective if either party to a contract invokes the ‘‘arbitration clause’’. Arbitration is usually voluntary. The structure and terms upon which the arbitration is to be carried out are decided by the parties and the neutral.
Arbitration
Generally, most contractual agreements will contain an arbitration clause either providing that:
- Should a dispute arise it will be resolved by arbitration , or
- Agreements which are signed after a dispute has arisen agreeing that the dispute should be resolved by arbitration
Arbitral Tribunal
Agreements with arbitral referral generally have a special status in the eyes of the law e.g. in a contractual dispute where a common defence is to plead that a contract is void thereby preventing any claims. One would think that should such a claim be made successfully then each term of the contract would be void, this is not the case in the Gambia; here such a contract would only be determined void by the courts or an arbitral tribunal if so referred and if such contract contains an arbitral clause it would be determined by an arbitral tribunal.
The arbitral tribunal are guided by the Act as to their qualification, appointment, jurisdiction and conduct; however, they are more generally expected to:
- to act fairly and impartially between the parties,
- to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of “natural justice“: is a technical terminology for the rule against bias (nemo judex in causa sua) and the right to a fair hearing (audio (alteram partem). Simply put it is the duty to act fairly;
- to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute