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Pair.fact § Legal – Nouveautés

Pairfact Legal AG informe Pair.fact. Ce nom dit tout. Les faits et les exemples ou les expériences sont présentés par «paires» afin de susciter la compréhension parmi les non-avocats et de présenter simplement les questions souvent compliquées. L'équipe a toujours des opinions qui apparaissent dans les blogs et les vlogs.

Les spécialistes de Pairfact Legal AG publient également des articles spécialisés pour d'autres avocats, qui peuvent également être trouvés ici.

Where can I find an arbitrator

First, let’s answer the question of who can be an arbitrator. To put it simply, basically anyone. There is no official certificate, such as a medical or bar license. A number of institutions provide certificates for arbitration courses and many arbitral institutions, ones that provide secretarial services to conduct arbitrations, do provide lists of arbitrators.  

That being said, it does make sense to use a person who knows arbitration procedures and arbitration law.

The TWO qualities every arbitrator MUST have are that they are independent and impartial.  

If the parties have agreed in a contract or at a later stage upon certain qualifications such as nationality, age or any other criteria, that arbitrator must meet those.

There are a number of ways to find an arbitrator. Arbitration institutions have lists with people that are qualified in arbitration as a procedural field. However, they only offer limited quality control and sometimes don't recommend arbitrators for the parties to choose from.

If you don't go to a traditional institution for your arbitration but to a specialized Chamber of Commerce or a specialized institution in a particular field such as the WIPO for intellectual property, you will often find arbitrators that are both qualified in arbitration and qualified in the field of your dispute.

There are many organizations in which arbitrators are associated. Some offer certification courses, some do not. Organizations like arbitral women (https://www.arbitralwomen.org) or the Chartered Institute of Arbitrators (https://www.ciarb.org) offer lists with specializations of and information about the potential arbitrators.

The benefit of such institutions is that they usually have the arbitrators past experience and CVs on file and publicly accessible. The one downside is that the pool within these groups is generally limited.

The real answer here is likely the answer you have come across most often in life – ask your trusted resources for an individual he or she can recommend.

What Happens at the Enforcement Stage of An Arbitration?

Did you know there are basically four ways an arbitration enforcement can be overturned? I’m Lara Pair, founder of Pair Fact Legal. In our last Arbitration Espresso video, I explained that the merits of a case are no longer a subject of discussion when it reaches the enforcement stage. So, what is? Let’s dive in.

The issues reviewed at the enforcement stage are whether due process and the fundamental principles of the law of a particular nation where the enforcement is to take place have been adhered to. There are four questions that are answered, assuming that an arbitration agreement existed.

Can You Change Your Mind About Arbitration?

What happens if one of you decides not to arbitrate after it is already in the contract? Find out in this Arbitration Espresso!

Arbitration is a binding agreement for you and the other party to settle your dispute without going to court.

Once you or the other party agree to arbitration, you both have a legal obligation to go through with it. Agreeing to arbitrate usually is part of a written contract and is legally binding. Agreeing to arbitrate is a legal commitment – you cannot change your mind on a whim.

If you and the other party have a contract that stipulates arbitration before court, you both must agree to these terms. However, as with any contract, there can be special grounds that exempt you from arbitration. If you can prove fraud or duress, you may use these as accepted reasons to change your mind about arbitration. Similarly, if both of you agree to change the contract by amending the arbitration clause, that is possible too.

What do you do if the other party backs out of arbitration? In that case, you may want to consult a lawyer who has a deep understanding of contract law.

Next time on Arbitration Espresso: to arbitrate or not to arbitrate, that is the question. Subscribe to our channel so you don’t miss the answer!

Is Arbitration an Option for all Legal Disputes?

There are lots of legal issues that can be resolved in arbitration – but not all of them. Let’s answer those three questions in this week’s Arbitration Espresso!

You can arbitrate a lot of legal disputes, but not all of them. For example, you cannot arbitrate a homicide. If it is a criminal dispute, it is heard in court. You cannot arbitrate whether you are married, but you could settle financial issues through arbitration. In fact, You can arbitrate other civil law issues, such as contract disputes between a company and a contractor. What cases can go to arbitration? If the result of your arbitration would apply to more people than just you and the other party, you can probably NOT arbitrate.  Arbitration may be the best choice for your legal issue. Want to find out?  Schedule a call with our team.

If I Win an Arbitration, How Do I Collect the Funds?

Wait! If a private judge handles an arbitration, how do I get what I won? I’m Lara Pair, founder of Pair Fact Legal and this is one of the most commonly asked questions I receive. I’ll answer it in this week’s Arbitration Espresso!

Often times once a case is decided either by a judge or by an arbitrator, the losing party gives up and gives you what you win in the case. Of course, that is a bit of an oversimplification.  

But both a final award in arbitration and a final judgment from the court must go through governmental enforcement proceedings.

Say you won a judgement for $100,000 from your opponent.  You cannot order his or her bank to give you money. Enforcement proceedings would have to be initiated for you to secure the funds. The same applies for arbitration awards and judgments.

When Can I Choose Arbitration?

You have the constitutional right of access to courts . In order to NOT go to court, you can choose arbitration as an alternative. You and the other party decide on an arbitrator based upon the specific nature of your legal dispute.

The law allows both you and the other party to go to arbitration to settle your dispute – but only if both parties agree and must do so expressly. You can imagine that once a dispute or argument begins, it can be difficult for both parties to agree to anything.

The best way to ensure that both parties agree to arbitration is to make sure it is in the underlying contract. A commercial law attorney can draw up a contract that makes arbitration the required method of dispute resolution  

Arbitration is a great way to resolve differences but only if both parties agree – and arbitration is not always applicable for all legal situations. Need answers to your arbitration questions right away? Schedule a call with our team.

What Is Arbitration?

Arbitration is a method that may help you and the other party resolve your dispute without going to court. Instead of the expense and stress of a trial with a judge or a jury, arbitration allows you to reach a legal decision.

Arbitration does not  require a government appointed judge. You and other party usually select a neutral arbitrator with greater knowledge about the subject matter or area of law of your dispute.

Welcome to Arbitration Espresso

What is arbitration? How does it work? What happens when there are more than two parties involved? How can an arbitration clause help my business? Attorney and Pair.fact Legal Partner Lara Pair will answer these and more questions in our new video series Arbitration Espresso.

Arbitration Espresso is a collection of short, easy-to-understand videos designed to explain and demystify Arbitration. They're perfectly paired with an espresso or your beverage of choice.  

Do you want to discuss the specifics of your situation? Lara and her team are available to talk through them with you. Schedule a call by emailing office@pairfactlegal.com. Pair.fact Legal AG is an innovative law firm based in Zurich. Our lawyers represent clients with passion and sensitivity.

Can I go to arbitration if there are more than two parties?

What is there are more than 2 parties involved? Ordinarily arbitration is meant for 2 parties, as is traditional litigation. However, in certain circumstances more than two parties can be involved in a dispute. Examples are contracts with more than 2 parties, serial contracts, delivery contracts, large projects. In such cases arbitration can be difficult, because of the number of arbitrators and that everyone needs to be treated equally. A problem may also occur if not all parties have agreed to arbitration with the same arbitration clause. Such cases are not impossible to resolve, but it helps if the arbitration clauses match one another or the basis is a single contract. I recommend that you choose institutional rules that contain provisions about joinder or consolidation in order to cope with such situations.

Interesting decision of the Swiss Federal Supreme Court on the statute of limitations.

At issue in case 4A_428/2020 of 01.04.2021 was the treatment of the statute of limitations during the appeal process. After extensive study of the existing literature and case law, it decided in a pleasingly concise manner:   "... according to Art. 138 para. 1 CO, the statute of limitations does not begin to run anew until all regular methods of appeal have been exhausted."

Why Choose Arbitration

Arbitration is an alternative dispute resolution where contesting parties agree to a neutral third party’s ruling (called an award) after hearing arguments and reviewing evidence. This award may be enforceable and binding. Arbitration is a confidential process in which both parties present evidence to support their claim.

BGE 4A_19/2020 - The Federal Court's considerations regarding the deletion of the company from the Commercial Register and its effects on the assignment creditors

In the following, the ruling of the Federal Court of Justice of August 19, 2020 will be explained. In this new decision, the Federal Supreme Court dealt on the one hand with the effects of the deletion of a stock corporation from the Commercial Register after bankruptcy proceedings have been opened against it. With regard to the effects, the Federal Court had to deal in particular with the consequences of the deletion for the creditors of the bankruptcy estate. On the other hand, the decision deals with a more well-knownissue, namely the liability of the bodies of a joint-stock company under the company law.