Theory of the Arbitration Process

Carlston, Kenneth S.

doi:10.2307/1190383

Cited by 10 publications

(3 citation statements)

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“…Understanding the society within which the law operates allows researchers to understand the nature of the institution of arbitration (Carlston, 1952;Sayed, 2008;Gaillard, 2015;Jemielniak and Kaczmarczyk, 2016). The 'Law and society' school of thought represents a viable means of exploring arbitration because how arbitration is framed and operates in different jurisdictions, tends to be constrained by the prevailing social norms (Abu Sadah, 2009).…”

Section: Law and Societymentioning

confidence: 99%

“…The fourth of such arbitration theories is the autonomous or pluralistic theory of arbitration (see Carlston, 1952;Lew, 2006;Paulsson, 2011;Alcolea, 2020). At the core of this theory of arbitration is the notion of an institution that is self-created, self-regulated and self-focused, operating outside the legal framework of the state (Michaels, 2013).…”

Section: The Autonomous (Pluralistic) Theorymentioning

confidence: 99%

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The Finality Principle in Arbitration: A Theoretical Exploration

Ojiako

2023

J. Leg. Aff. Dispute Resolut. Eng. Constr.

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Arbitration remains a popular means of resolving construction industry disputes. Among its purported advantages is an emphasis on the notion of 'finality'; in order words, that awards made following arbitration proceedings are 'final' and should bring the dispute to a 'conclusive' and 'binding' settlement. However, in most jurisdictions such as in South Africa, the finality principle can be impeached by the courts who are able to vacate awards on the basis of statutory (legislative) or common law provisions (or both). While the finality principle and vacatur are both generally well espoused in arbitration literature, our appreciation of broader theoretical discourse in arbitration is arguably, more limited. With this in mind, framed within the 'Law and society' school of thought, we set out in this paper to elucidate upon existing theories that are regularly relied upon to explain how finality may be generated, dispersed, endorsed, and modified through vacatur. In doing so, we clarify and demonstrate (set within the context of South African domestic commercial arbitration), how the finality principle in general and vacatur in particular are regulated by the state through legislation. An analysis of some specific construction arbitration case examples is also undertaken.

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Section: Law and Societymentioning

confidence: 99%

Section: The Autonomous (Pluralistic) Theorymentioning

confidence: 99%

The Finality Principle in Arbitration: A Theoretical Exploration

Ojiako

2023

J. Leg. Aff. Dispute Resolut. Eng. Constr.

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“…However, it is important to realise that sport does not have a free hand here. Despite arbitration being, essentially, an internal mechanism of dispute resolution, arbitration exists (and is validated), at least at some level, by the approval of state-based legal systems (Carlston, 1952). More specifically, in the context of Western societies, it is approved and validated because it falls within the general principle of freedom of contract; that individuals are generally free to contract to what they want and, consequently, are also free to agree the mechanism to settle disputes about that contract in the future.…”

Section: The Role Of Arbitration In Creating Legal Norms Applicable Tmentioning

confidence: 99%