ARBITRATION VS LITIGATION
We, as a firm, promote alternative dispute resolution in the form of Arbitration as the recommendable procedure to resolve disputes which otherwise would be subject to formal Court proceedings, for the following reasons:
1. With regard to defended or opposed litigation in a Court of Law, there are a myriad of formalities prescribed by the Acts and Rules regulating the procedures of the Courts. In contrast, in Arbitration proceedings the parties agree on suitable and less complicated and simplified procedures which may apply dependent on the issues at stake.
2. Courts are booked in full months and sometimes years ahead. Arbitration proceedings are preferable as these proceedings can often be finalized within a maximum period of 6 months – justice delayed is justice denied.
3. Although, contrary to our Court litigation with reference to which no payments are made to the Judge presiding at the hearing, for the venue (the Court) and for the mechanical recording thereof, we find that Arbitrations may nevertheless be finalized less expensively as no unnecessary costs are incurred to comply with often unnecessary and unnecessarily technical Rules and Regulations in view of the formal nature of litigation proceedings.
4. No appeals/reviews lie against the decision of an Arbitrator, which means that the opposing party may not extend (often to delay and accordingly deny justice) the finality of proceedings by extensive appeals to the High Court and if unsuccessful, potentially to the Supreme Court of Appeal and if the matter of Constitutionality is involved, even to the Constitutional Court – again this leads to extreme delays in the finalization of proceedings.
5. Proceedings before Arbitrators are held informally, which facilitates the resolution of a dispute without obstructive technical rules and regulations regulating the conduct of Court proceedings and which do not often contribute towards the effectiveness of the proceedings.
6. Most importantly, when one embarks on the civil litigation, a Judge/Magistrate is assigned to the hearing of the application/action and the parties have absolutely no control over his / her appointment. In Arbitration proceedings the parties may by agreement appoint an Arbitrator with a proven track record in the field of law applicable, who can be trusted to resolve the dispute in favour of the party deserving to succeed. In Court litigation involving a dispute/s which can only be resolved by experts testifying the parties may, in Arbitration proceedings, agree to the appointment of an Arbitrator with expertise in the field related to such dispute and the Arbitrator may be allowed to consult with an Advocate or Attorney of his / her choice to assist with the law applicable to the facts. Large amounts of savings may be procured in such cases as the parties are not required to appoint various expert witnesses and to pay for services related to such experts’ testimony and the costs of formal rules of procedure relating to expert evidence which apply in Court litigation. In a Court of Law the Judge / Magistrate does not have any expertise in dealing with the aspects of the case requiring expertise – this prolongs the finalization of proceedings to educate the Judge / Magistrate on the matters relating to expertise, quite apart from the extensive costs which may be incurred as mentioned above.
7. A date/s for the hearing of an Arbitration can be arranged which is /are suitable to the Arbitrator, the parties in the proceedings and witnesses intended to be called to testify.
8. One often finds, with regard to Court litigation, that on account of some technical procedural omission by party, that cases are postponed to a date which causes a further lengthy delay and incurment of wasted costs. One also find that cases may not be assigned for hearing on the stipulated date for hearing as a sufficient number of Magistrates/Judges may not be available to hear all the cases on the date so assigned, leading again to a postponement with an accompanying lengthy delay and incurment of wasted costs.
The negative of Arbitrations, however, is that there is no procedure whereby a witness may be subpoenaed to compel him / her to testify. In practice, however, it more often than not unwise to compel a witness who is unwilling to do so voluntarily, as such a witness would be likely to be animistic towards the person who compelled him / her and therefore give unfavourable evidence. Careful consideration should be given to the possibility, nevertheless that it may be necessary to subpoena a witness to testify and the importance of such evidence. If it is decided that it would be necessary to compel a witness to testify, Arbitration will definitely be unsuitable.
Once an Arbitration Award is made, a formal, but simple Application is made to Court to certify the Arbitration Awards which thereupon has the status of a Court Order which may be utilized to execute the Court Order.
Arbitration proceedings, are, however, only available if the dispute arises from a contract incorporating an arbitration clause or otherwise, if both parties consent to Arbitration proceedings.