Activity 5z

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of arbitration to achieve the principles of justice requires students to write about relevant strengths and weaknesses of arbitration. Responses will vary according to the arguments selected.

        Arguments in support of arbitration achieving the principles of justice include:

• The award handed down by the arbitrator is legally binding and enforceable – parties have closure, and can be confident that the arbitrator’s decision will be enforced if the other party fails to honour it.
• During the arbitration, parties are encouraged to resolve the dispute themselves. The arbitrator will allow them to discuss the issues, and, if the parties are able to agree, the arbitrator will be guided in her or his final decision by whatever the parties determined between themselves. Despite the determining role of the arbitrator, parties still have access to some self-determined justice.
• The arbitrator will make a decision if the parties are unable to agree, which means that a result is not reliant on compromise between two disputing parties – even if the parties cannot reach agreement, the dispute will still be finalised.
• Rules of evidence are flexible, and most evidence will be admissible. Rules of procedure are also fairly flexible, as the arbitrator runs proceedings and discussions, and has the freedom to adapt rules to the needs of the dispute. Flexibility assists with fairness, because it adjusts to the needs of the dispute.
• The rules of evidence and procedure are flexible, but arbitrations are still bound by natural justice – flexibility cannot be provided at the expense of fairness.
• Arbitrations are compulsory to attend – either because they are conducted by a court, or because the parties have agreed to arbitration in a pre-existing contract. This means that, if either party fails to attend, the dispute can be awarded against them. The party who did the right thing and attended may win by default.
• Arbitration contributes another meaningful option for dispute resolution to the legal system.

        Arguments against arbitration achieving the principles of justice include:

• The arbitrator’s award often cannot be appealed if one party believes an error has been made or the outcome was unfair or a product of an unequal capacity to argue their case.
• Arbitration is appropriate for a smaller range of disputes than methods such as judicial determination or mediation.
• Evidence is relied upon, but because there is no formal cross-examination or comprehensive rules of admissibility some evidence might be misleading or unfairly prejudicial to one party – evidence is also presented frequently in documentary form, in which case the witnesses are not present in person to be questioned.
• Arbitrations are about more than simply party agreement, but they cannot be used to set precedent, and decisions do not have to follow precedent. Parties in different cases may therefore be treated unequally.
• Arbitrators can suffer a lack of independence and security of tenure because they are not always Chapter III judicial officers – only judges and magistrates acting in their judicial capacity have independence and security of tenure.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against arbitration, that it does achieve one principle of justice. Responses will vary according to the arguments selected.