Buku Arbitration: A Practical Guide

• Judul Buku: Arbitration: A Practical Guide
• Penulis: Arthur T Ginnings
• Penerbit: Inggris: Redwood Burn Limited, Trowbridge, Wiltshire, 1986
• Bahasa: Inggris
• ISBN: 0566024233

Sinopsis Buku Arbitration: A Practical Guide

The practice of arbitration has emerged from historic and sociopolitical developments as an important aspect of commercial life in many countries so that now, increasingly, parties to transactions in commerce and industry stipulate that any dispute arising from such dealings will be settled by arbitration and, to give effect to that intention, an appropriate provision is incorporated in their contracts.

Commercial arbitration, it must be emphasised, is not mediation or conciliation. The former could be described as an informal process resulting in a formal but non-binding recommendation by a third party; the latter is an attempt to persuade the parties to reach a settlement by mutual agreement; but, in any such circumstances, if either party resiles, no agreement can be enforced.

Arbitration results in an independent decision by a third party which, whether they like it or not, the disputing parties have agreed to accept. Thus, an essential pre-requisite in arbitration is an agreement between the parties that the arbitrator’s decision will be accepted as final and binding.

Even so, there is sometimes considerable reluctance by the ‘losing’ party to accept the finality of any such imposed decision and, in those circumstances, the ‘successful’ party can seek enforcement through the court.

Another important distinction to be kept in mind is the fundamental difference between commercial arbitration and the more widely publicised arbitration procedure applied to industrial disputes to which further reference is made in Chapter 10.

What is more, human nature being what it is, disputes between individuals and groups are, and will continue to be, a feature of every-day life in all sections of society even, unfortunately, when one or both parties are professing Christians.

In these last-mentioned circumstances, those concerned can and should be guided by the clear teaching of the New Testament from which the following procedure emerges:

1. Do your best to get the matter settled by mutual agreement between the parties; then, if that proves to be impossible –
2. Get the matter ventilated before witnesses with the same object, then, if that proves to be impossible –
3. Tell it to the church to have the matter decided and settled; then, if that proves to be impossible –
4. Inform the recalcitrant party (or parties) that he (or they) have forfeited the sympathy and respect of fellow-Christians until the matter has been put right.

A question will doubtless arise with regard to the meaning of ‘tell it to the church’ and it is suggested that –

1. in respect of disputes between members of one group or congregation it means –
   (a) informing the leaders of that body – who may be able to deal with certain situations without undue publicity; and/or,
   (b) involving the whole congregation as may be necessary.
2. in respect of disputes between members of separate groups the leaders and/or members of all groups concerned should be similarly informed.
3. when a dispute and its potential repercussions are such as to affect a wide cross-section of church members the solution of the matter could be referred to a properly set up arbitration process operated under Christian principles.

By means of arbitration, the matter(s) in dispute can be settled with the minimum of formality and without publicity, albeit with the option of applying to the court for an enforcement order if that should become necessary.

It is appreciated that countless numbers of problems are dealt with every day on the basis of person-to-person care and counselling. Not every problem is amenable to being dealt with by that means, however, and it would be helpful to those concerned to know that suitably qualified and experienced men and women are available to assist the parties in disputes – either as counsellors, conciliators or arbitrators – according to their needs and wishes.

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