Dr. Rajeev Jain - Arbitration and Dispute Resolution

Arbitration is a formal process similar to litigation but where the hearing is in private in front of a nominated third party, the arbitrator, who makes a binding decision. The arbitrator is not a court judge but rather an industry-specific expert or otherwise a well-qualified individual who both parties agree is suitable for resolving their dispute.

Arbitration is a legally based process that involves much of the procedure and type of argument that occurs in a court trial. However, arbitration is private. Like a court trial, it is concerned much more with fair treatment of the parties involved than achieving a precise legal agreement.

Advantages of arbitration:

The parties can choose who is to be their arbitrator and this means they can choose a person with the particular expertise involved in their dispute
The arbitral process is private and confidential to the parties and the arbitrator
An arbitration may be held anywhere that is convenient, at any suitable time.
Arbitration is flexible. Its procedure can be tailored to a particular dispute to make the best use of time whilst still ensuring a proper consideration of the matters in dispute
Parties are usually free to choose whoever they wish to be their case for them
An arbitrator's award can be enforced over all other dispute resolution methods (except litigation and arbitration) just like a court judgment, provided it followed from a properly written arbitration agreement.

Disadvantages of arbitration:

The procedure and process used in an arbitral process can be complex
It is possible to appeal an arbitrator's decision, so delaying finality, particularly if the dispute relates to an important point of law
Legal aid is generally not available for arbitration

We are frequently called to advise a client after an offer is received or to evaluate an acquisition opportunity. On occasion, one of our professionals is elected to the board of directors or an advisory board of a client’s company to not only provide insight on corporate finance matters, but industry trends, strategic planning, and the company’s comparative performance versus competitors.

We review company financial statements and strategic plans and make suggestions for the growth or direction of the company. We frequently act as a company’s merger and acquisition department, fielding inquiries from possible acquirers as well as possible acquisition candidates. Even though the company may not actively be soliciting either, we can easily gear up to handle the increased activity. We can coordinate publicity and news releases to trade publications and the press to create awareness and interest among potential sellers.

No matter what the transaction, our experienced professionals are a valuable addition to your team.

In a world of dynamic changes, you want to be sure that your advisor is there with you every step of the way. Whether you plan a merger, an acquisition, a joint venture, a sale, an equity investment or any other operation, a dedicated team of tax, legal, accounting and advisory experts will accompany you in order to minimize risk and maximize returns. Our specialists will give you high quality, comprehensive, strategically focused services with a global view taking into account the multidisciplinary aspects of cross-border deals.

Our corporate finance team will advise you to plan and execute M&A transactions. All along the process, we will be on your side to analyze value, negotiate and structure deals. We will also provide you with assistance in fundraising and access to the capital markets if needed. Our services will typically cover the full M&A scope, i.e. information memorandum, valuation, business modeling, financial and operational due diligence, vendor due diligence etc…

We can further assist you in defining and implementing efficient tax strategies to provide solutions tailored to your business needs. After identifying potential tax issues and reducing tax leakages, our main role will consist in securing with the tax authorities the tax treatment applied to the structure. Our intervention will also include compliance services.

Arbitration is the preferred final method for resolving commercial disputes if: 1. the parties want privacy 2. they do not share the same legal jurisdiction 3. the nature of the dispute is specialized 4. one or both parties want swift resolution of the dispute

Dispute Resolution Methods

Non-court dispute resolution methods are not limited to arbitration and the consensual dispute resolution methods. Several other methods which may be appropriate in differing situations are also in regular use.

Adjudication

This is a form of time-limited fast-track arbitration. Although generally available in a range of sectors, it is a statutory right, and therefore particularly commonplace, in the construction industry. It involves the use of an expert (the adjudicator) to rule on a technical or legal issue and is primarily used in construction disputes where awards are binding on the parties, at least on an interim basis. At the end of the interim period other processes, like arbitration, can be used by the parties, to achieve full and final settlement.

Expert Determination

This is a private process whereby a jointly appointed, independent expert with inquisitorial powers makes a binding decision on the issue in dispute. Sometimes this will involve the interpretation of law but usually will be on technical or financial issues.

Early Neutral Evaluation

This is a private and non-binding technique whereby a third party - usually a judge or somebody legally qualified - gives an opinion on the likely outcome from a court trial as a basis for settlement discussions before the trial goes ahead or is completed.

Med / Arb

These are mediations that have a contractual provision to go for an adjudicated decision if the parties cannot reach a settlement. Sometimes the mediator becomes the adjudicator/arbitrator, other times it is a separate person.

Ombudsman

An Ombudsman is third party who receives and investigates complaints or grievances against an institution by that institution's members, clients or employees.

It is essentially an inquisitorial process whereby the ombudsman (or 'commissioner') inquires into the matter and comes to an initial view about the matter. This view is then proposed to the complainant. If it is accepted by the complainant, it becomes binding on the institution. If it is not accepted, the whole procedure is extended through conciliation by the ombudsman and if this fails to satisfy the complaint, then the ombudsman makes a decision.