For so long, a dispute has arisen about the true legal characterisation of the arbitrators’ task and of arbitrators themselves. Apart from the fact that they exercise their function outside a courtroom, is an arbitrator like a regular court judge? Does an arbitrator enjoy the same powers and obligations of a judge? Research shows that the opinion which states that arbitrators exercises a judicial task and that they resemble judges’ functions is largely true. This opinion is not absolutely valid, though. Although they correspond to judges in several aspects, arbitrators are distinct in many significant areas. On the one hand, both the arbitrator and the judge are bound to honour adversary parties’ fundamental right to defence. On the other, the arbitrator does not enjoy the power of compulsion exercised by judges.

Separately from regular courts, arbitration needs to be invigorated and promoted as an alternative dispute resolution mechanism. Of the numerous benefits it yields, arbitration helps reduce the backlog of cases before regular courts. However, it is taken for granted that arbitration is not absolutely independent of the formal judicial system. Unlike the regular court judge, who enjoys the power of compulsion, the arbitrator and parties to arbitral proceedings are obliged to refer to the court when necessary either to ensure enforcement of the arbitration agreement, to appoint or dismiss an arbitrator, to terminate an arbitrator’s task, or to ensure implementation of awards made by the arbitral panel. The court may play an extensive role in adjudicating arbitral proceedings. It compels witnesses, who refuse to appear before the arbitral panel, to do so. It also plays an important role in reviewing and giving an executory force to arbitration awards. In the first place, the court considers challenges submitted by a party against the arbitration award. When relevant terms and conditions are met, the court then endorses and orders that the award be enforced. In addition to the fact that the arbitrator does not enjoy the power of compulsion, the Palestinian Arbitration Law No. 3 of 2000 provides another reason why arbitrators need to refer to the court; regular court judges are duly experienced and knowledgeable of procedure and other branches of law. Article 17 of the Law provides that the “arbitration panel shall have the right to consult with the competent court on any legal matter, which arises during consideration of the arbitral dispute.”

Title

مجلة الأبحاث المالية والمصرفية

Publisher

An-Najah National University

Publisher Country

Palestine

Publication Type

Both (Printed and Online)

Volume

3

Year

2015

Pages

40