In addition, court filings and publicity surrounding those filings can bring to light previously non-public facts that the parties would prefer to keep out of the public eye, such as tax records and other financial information. Confidentiality agreements entered by the parties may stop some juicy information from becoming public, but rarely will they stop it all.
For this reason, in many legal disputes, plaintiffs and their lawyers are happy to file a lawsuit against alleged wrongdoers to create pressure in both a court of law and the court of public opinion. But in certain disputes where both parties are likely to make unflattering factual and legal allegations against the other, such as in contract disputes, the public nature of the litigation could expose both parties to bruised reputations and wounded bottom lines.
By contrast, arbitration is almost always private. There is no public arbitration docket, so there is no public record of an arbitration taking place. Thus, there is often little concern about the media or other members of the public shining a spotlight on the parties involved in arbitration proceedings and the nature of their dispute.
Litigation is notorious for moving at a glacial pace. In most jurisdictions, a lawsuit filed today could take 18 to 36 months to get to trial. Crowded court dockets play a role in this delay, but so does the gamesmanship between lawyers.
Arbitration tends to move faster than litigation. For many arbitrations, the parties need to wait only a few months between commencing the process and attending the main hearing. Because there is typically less formalized procedure throughout an arbitration, there is less potential for competitiveness to slow down the process. Besides moving slowly, litigation sometimes feels interminable.
When a losing party exercises its right to appeal a judicial decision, the parties must spend more time and money on the litigation by participating in the appeal process. Appeals also introduce uncertainty, as appellate courts could find partly for the appellant and partly for the appellee, so no party comes out of the appeal a clear winner. However, because most judicial decisions are appealable, parties know that they might have multiple attempts to obtain a favorable judicial decision—and that it might take a while for a favorable decision to become the final decision.
Most arbitration, on the other hand, is binding and non-appealable. This means that frequently, the arbitration decision will be the final word on the legal dispute unless the parties agreed that an arbitration decision would be appealable, or, in some jurisdictions, the losing party can show there was bias or fraud by one or more arbitrators.
The non-appealability of most arbitration decisions means that the parties involved will likely resolve their dispute with finality sooner than if they litigated it and had to wait out an appeal.
But it also means that the parties lose an opportunity to challenge a third-party's decision regarding their dispute. Litigation is unpredictable for several reasons even when the parties are clear about what the law is regarding a dispute. For one, it is not until a lawsuit is filed that a judge is assigned.
That judge may be knowledgeable about the factual and legal issues underpinning the lawsuit based on experience—but probably not. Second, even though the parties to a lawsuit can research how their judge has ruled in earlier lawsuits regarding similar issues, there is no guarantee that the judge will decide the case consistent with those earlier decisions.
Third, jurors are unpredictable. They can be swayed by emotion, the charm of a lawyer or witness, or their preexisting feelings for people or organizations like those in a lawsuit. If the parties do not agree with the decisions of the court, they can appeal to a superior court for getting justice, provided certain conditions are fulfilled. The court has a definite and formal procedure, for settling the conflict between the parties concerned, which should be followed strictly.
The difference between arbitration and litigation can be drawn clearly on the following premises:. Arbitration is preferred by the parties over litigation due to many reasons such as greater confidentiality, quick judgement, choice of solutions, higher chances of settlement, low cost, flexibility in process etc. Although, litigation has a number of advantages, i. Your email address will not be published. Save my name, email, and website in this browser for the next time I comment.
Key Differences Between Arbitration and Litigation The difference between arbitration and litigation can be drawn clearly on the following premises: Arbitration is a method of resolving the dispute in which a neutral third party is appointed to study the dispute, listen to the parties and then make recommendations. On the other hand, litigation is described as a legal process in which the parties resort to the court for the settlement of disputes. Arbitration is always civil in nature.
Conversely, litigation can be civil litigation or criminal litigation. Arbitration is a private method of resolving controversies between the parties, wherein complete confidentiality is maintained. The purpose of the present paper is to seek attention to the comparative discussion in brief between arbitration and judicial settlement of maritime boundary dispute.
According to the article of the United Nations Convention on the Law of the Sea , one state has the right to choose one or more of the following means to settle their disputes concerning the interpretation and application of this Convention:. In settlement of maritime boundary disputes, the LOS Convention provides freedom to the States Parties concerned to settle their dispute through negotiation or other diplomatic measures between them.
Parties can request to the court or Tribunal having jurisdiction over their disputed issues in case where there is no settlement between them. United Nations Convention on the Law of the Sea refers two types of maritime boundary dispute settlement process 5. The system of dispute settlement is contained in two parts of United Nations Convention on the Law of the Sea.
Literally, arbitration means Settlement of a dispute between parties to a contract by a neutral third party without resorting to court action. It is usually voluntary but sometimes required by law. The Arbitration is one of the four means for the settlement of maritime boundary disputes concerning the interpretation or application as stated in article of the Convention 6.
The Arbitration under Annex VII is used for the settlement of disputes between parties that have not made a declaration of choosing procedure or for parties that have not accepted the same procedure for settlement of the dispute. So, it is a default procedure to settle the maritime dispute.
Any party to the dispute may bring their case before Arbitration by written notification addressed to the other party with the statement of the claim and the ground on which it is based 7.
The Arbitration is composed of five members preferably chosen from the list of arbitrators which shall be drawn up and maintained by the Secretary General of the United Nations 8.
The party who institute the proceeding before the Arbitral tribunal shall appoints one member to be chosen preferably from the list of arbitrators, who may be its national. The other party, against which the proceeding is brought, also appoints one member among its nationals in the list within 30 days of getting of the notification addressed by the party that brings the case 9. The rest of the three members shall be appointed jointly by the parties according to their agreement from the nationals of the third States unless the parties otherwise agree.
One member out of these three will be appointed as the president of arbitral tribunal. If the party against which the case is made fail to do so within above-mentioned time or the parties are not able to reach an agreement on the appointment of arbitrator, the President of the International Tribunal for Law of the Sea ITLOS , upon request and in consultation with the parties, shall make the necessary appointment.
According to article 5 of Annex VII of the LOS Convention, the arbitral tribunal decides its own procedure, ensuring full opportunity to be heard and to present the case to each party The decisions of the arbitral tribunal depend on a majority vote of its members. In case of an equality of vote the President has a casting vote. The award mentions the subject matter of the dispute and states the reasons on which it is based, and the name of the members who have participated.
The award shall be final without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure and it will be binding upon the parties. Through arbitration, many of coastal states settled their longstanding maritime boundary delimitation disputes. In , Bangladesh and India resolved their 40 years longstanding maritime boundary delimitation dispute which commenced in Some examples of the settlement of maritime boundary disputes can be mentioned here which have been settled through arbitration.
Australia and New Zealand v. Arbitration is more flexible than the procedure followed by the ICJ or Judicial process.
In the case of arbitration, particularly if a case is brought before the arbitral court on the basis of a special agreement, the parties have more freedom of movement and option. This confidentiality is useful in the case of maritime boundary disputes where, if the parties to such a dispute still have outstanding differences with other States over their maritime boundaries, they do not want that the arguments that they use in the dispute settlement proceedings to be made public because this may disadvantage their position in negotiating over their other unresolved maritime boundaries From appointment of the arbitrators to the decision about procedures and rules of arbitration are remained under the control of the disputing parties.
However, in the extreme condition of discord between the disputing parties as to the appointment of three other members, the President of the ITLOS is authorized to appoint these members However, it also acts as impetus for the disputing parties to promptly agree on the remaining three members.
In arbitration there is no third party intervention in any dispute like the proceedings before any standing courts and tribunals. Without the wishes of disputing parties no third state can intervene in the proceeding to take any benefit. Thus, it provides flexibility and space to States to settle their dispute peacefully.
It also gives chances that similar kinds of disputes can be settled using different principles with different States. The arbitration proceedings under Annex VII are time bound and the traditional excuses of delays are not available under this process. Extra expenditure for the appointments of arbitrator according to Annex VII of the convention is one of disadvantages of arbitration.
Each disputing party appoints one member to the tribunal and the rest three are appointed jointly by the disputing parties So, States have to incur extra expenditures for their services. Arbitration tribunals involve high costs and high fees paid to arbitrators and court registrars, together with rental expenses of premises in which proceedings are carried on, secretarial and interpreting services, are well known for the adverse effect they have on public opinion whereas all costs of the ICJ are borne by the UN Another possible disadvantage of arbitration is delay appointment of arbitrators and ill motive to get the appointment by the president of ITLOS in case the President belongs to the nationality of one of the disputing parties This arbitration procedure, being default in the situation of discord as to the choice of respective means under Article 1 , can be invoked by any State party in diversified circumstances.
In some circumstances, this option for the appointment by the President of ITLOS may be exploited with some ulterior motives. The core advantages and disadvantages of Arbitration are mentioned in Table 1. The Judicial process of maritime boundary dispute settlement consists of the following three institutions:. Table 1. Advantages and disadvantages of arbitration. Commission on the Limits of the Continental Shelf is also a body that deals with the overlapping claim of extended continental shelf among states.
It is the major international judicial organ which has fifteen members or judges, elected separately by the U. General Assembly and the Security Council for a term of nine years Only states can bring controversial cases before it, either by special agreement between the parties to a dispute or by a unilateral application by either party The Court has actually settled a number of maritime boundary dispute, the first being the North Sea Continental Shelf Cases between former West Germany on one side and Denmark and the Netherlands on the other ICJ is entitled to exercise its jurisdiction over any dispute concerning the interpretation or application of LOS convention which is submitted to it under Article and There are some Judgments relating to maritime boundary dispute is mentioned here which have been declared by ICJ after the enforcement of LOS Convention in Fisheries Jurisdiction Spain v.
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