Are you finding it difficult to understand some key terms and words in digital arbitration? Learn the ABCs of the industry with this glossary of terms.
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Advocate: A person representing a party who presents the party’s position, evidence, and arguments to an arbitrator. They may also be known as general counsel, attorneys, or specialists in the given case.
Affidavit: A written statement related to the issue that is presented as a sworn document.
Appointment: The process by which an arbitrator or panel of arbitrators is appointed to decide a dispute.
Arbitral Award (or shortly “Award”): An arbitration award is a final and binding decision made by a sole arbitrator or an arbitral tribunal, which resolves, wholly or in part, the dispute submitted. by an arbitrator, similar to a court ruling. This discusses the rights and obligations of the parties regarding the case.
Arbitral Tribunal: depending on the case, the sole arbitrator or a panel of arbitrators
Arbitration: A dispute resolution method wherein parties agree to submit their dispute to one more impartial arbitrator who will make a final and binding decision.
Arbitrator: an independent person or body formally appointed to settle a dispute by providing a binding arbitral award.
Bad Faith: dishonest or unacceptable behavior with an intent to deceive or disrupt the procedure. This may also refer to a party’s unruly conduct with respect to the arbitral procedure.
Bench decision: An oral ruling or a written ruling read aloud, by an arbitrator after a hearing.
Bifurcation: the process of dividing and separating certain issues in a case from the others.
Brief: summary of information, details, facts, and legal principles related to a dispute.
Challenge to Arbitrators: the process by means of which a party requests the removal of an arbitrator from the panel with respect to the arbitration rules and applicable law.
Claimant: the party who initiates the arbitration proceeding.
Class action: an action wherein two or more parties or claimants with a common interest file a grievance against the same respondent. It is often done to make arbitration more cost-effective for the claimants who usually have smaller claims.
Commercial Arbitration: arbitration of disputes involving commercial and business transactions, whether from one business entity to another, a business entity to an individual, etc.
Costs of the Arbitration: the fees and expenses incurred for the arbitration proceeding. This includes, but is not limited to, the fees for the lawyers, arbitrator or panel, arbitral institution, experts, witnesses, and other services.
Counterclaim: a claim or set of claims made to rebut a prior claim; generally made at the same time as the Statement of Defence.
Cross-Examination: the process of questioning a witness at a hearing by the opposing party.
Damages: the amount of money recovered to redress a grievance.
Defense: the respondent’s answer to the claims made against them by the claimant; also known as Statement of Defence.
Deposition: an out-of-court testimony of a witness which may be considered for discovery purposes later in the process.
Discovery: the formal process of gathering information prior to a hearing. This can be done through depositions, document requests, interrogatories, and other means.
Dispute: an argument or disagreement between parties; the reason why arbitration is needed.
Due process: the proper application of standard procedures to ensure fairness among the parties.
Electronic signature: or e-signature is an electronic symbol provided by a signatory through a tech-enabled and secured procedure that is logically associated with other electronic data.
Evidence: documents, testimonies, or other matters that are presented as proof at a hearing.
Ex Parte Communications: communications between a party and an arbitrator, without the involvement of the opposing party.
Force Majeure: an exceptional, uncontrollable, and often unfortunate, circumstance that prevents a party from fulfilling their legal obligations.
Foundation: the preliminary facts demonstrating the authenticity of a document or testimony.
Frustration: a legal principle which excuses a party from fulfilling a contract due to an unforeseen event that renders performance impossible, illegal, or radically different.
Grievance: a claim of a party that details that a term of a contract has been violated.
Governing Law: the law upon which a contract is to be interpreted.
Hearing: a legal proceeding before an arbitrator wherein parties present evidence and argument to reach a decision.
Hot-Tubbing: is the process of questioning an expert witness while cross-examining them at the same time.
Impasse: essentially a deadlock wherein progress to reach an agreement is no longer possible between the parties.
Injunction: an order to refrain from doing a specified act.
International Arbitration: arbitration with elements related to two or more jurisdictions (for instance, parties to the dispute based in two different states).
Joinder: the process of bringing a third party into an ongoing arbitration, which generally requires the agreement of all of the parties.
Jurisdiction: the authority of an arbitrator to hear and decide a particular issue placed before them in an arbitration proceeding.
Laches: the lack of diligence from one party to make a legal claim, which endangers their opportunity to make said claim.
Leading question: preliminary inquiries used on direct examination and/or cross-examination.
Lex Contractus: the applicable law in a given contract.
Materiality: the degree of significance of an evidence to the dispute or case.
Merits: the substantive issues or the inherent right and wrongs or a legal case, as opposed to procedural grounds.
Model Law: a format for arbitration law adopted by UNCITRAL in 1985 and promoted to provide standards and harmonization in international arbitration.
Necessity: the rule that exempts a state from performing an obligation under international law due to exceptional and uncontrollable circumstances.
Notice of Arbitration: is a document that signifies a party’s intention to refer a dispute to arbitration and it is given when initiating recourse to arbitration or to join any party as an arbitrating party as well as to initiate recourse in arbitration against any party which is already an Arbitrating party
Opening Statement: a lawyer’s first opportunity to present their arguments before an arbitral tribunal, in writing or, depending on the context and the arbitration rules, orally at the start of a hearing.
Offer of proof: an advocate’s response to an opposing advocate’s to the admissibility of evidence at the hearing directed to the arbitrator.
Opinion evidence: evidence based on the belief or impression of a witness regarding the matter at hand.
Party: Persons, businesses, or governmental entities involved in legal proceedings; this could refer to either the claimant or respondent.
Per diem fee: an arbitrator’s daily rate for hearings.
Pleading: an oral or written submission of the parties in support of their argument in the case.
This includes but is not limited to, the Statement of Claim, Defence, and Reply.
Pre-Hearing Conference: a physical or digital meeting held prior to a hearing to address procedural matters, rules, and other relevant issues to ensure a smooth arbitration process; may also be referred to as case management conference.
Presiding Arbitrator: sometimes also referred to as president of the arbitral tribunal, is the arbitrator in a panel responsible to lead and manage proceedings in arbitration. They may be appointed by the parties, the other arbitrators, or by an appointing body.
Quantum: the amount of money involved in a case.
Recognition of Award: a court of law’s recognition that an arbitration award is valid and binding; this is also related to enforceability.
Remedy: the form of enforcement in redress for a claim, such as damages.
Respondent: a party against whom a claim is brought by a claimant or class action.
Restitution: is the order from a ruling body for a party to compensate for the amount the victim lost and suffered in light of the dispute.
Schedule of Costs: a table detailing the fees and expenses payable by the parties to the arbitrator, panel, or arbitral institution.
Seat of Arbitration: the jurisdiction wherein the arbitration is to legally take place and where the award is to be made (regardless of the arbitrator’s or panels’ physical location).
Settlement: happens when the parties come to an agreement which results in the voluntary resolution of a dispute.
Slip Rule: the ability of an arbitrator or panel to correct minor errors in its award (i.e. typographical errors).
Sole Arbitrator: an individual who serves as the only arbitrator who will preside over an arbitral procedure.
Splitting the Baby: a situation wherein both parties are given partial victory over a case; may also be known as compromise.
Stare decisis: a law principle which states that an arbitrator or panel should be guided by precedents in past similar cases.
Submission agreement: presented to an arbitrator when there is no collective bargaining procedure that authorizes arbitration. Commonly, this identifies the nature of the dispute, the issue, and relief to be decided, etc.
Subpoena: a formal request of attendance to a hearing sent to an individual
Surety: a guarantor who promises to pay for the principal debtor in case of the former’s default.
Terms of Reference: a document which details the specifics of a case, including but not limited to the names and addresses of the parties and their counsel, summary of claims, the seat of arbitration, etc.
Transcript: a verbatim record of spoken language used to record hearings for later reference.
See also Stenographic Record.
Transparency: the process and right to scrutinize the decision-making procedure.
Umbrella Clause: common in international investment cases, this compels the host state to comply with all obligations it has assumed in relation to investments made by an investor.
United Nations Commission on International Trade Law (UNCITRAL): a leading authority in international trade and investment law, backed by the United Nations established in 1966, currently composed of 60 member states.
Validation Principle: a principle wherein a parties’ arbitration agreement takes effect due to an arbitrator’s application of a specific law.
Voir dire: the method of examining an expert witness’s capacity and qualification to testify, to vet any bias or prejudice.
Witness of Fact: an individual who provides evidence, by way of a Witness Statement based on their personal knowledge of the matter; to be distinguished from expert witnesses who carry with them expertise in the subject.
Writ of fieri facias: a court order allowing enforcers to seize and sell the debtor’s assets with respect to an award’s ruling.
Zipper clause: is a provision in an agreement that states that the agreement is full and complete to the best understanding of the parties.
There you have it! The ABCs up to Z of digital arbitration. It could be a dizzying experience and procedure, but with the right knowledge, everyone can be empowered in utilizing arbitral procedures.
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