Australian Arbitrator, Lawyer and Mediator

Hugh D McArdle

Bjuris, LLB, LLM, Prof Cert Arb, FAICA , MCIArb.

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I am an Australian dispute resolution lawyer, Independent International Arbitrator and Mediator of a wide variety of commercial disputes.

I am available to appear as Counsel to represent parties and provide advice concerning any Alternative Dispute Resolution (ADR) process.

A full range of services are available to anyone, who has a dispute, seeks assistance in the management of a dispute to bring it to an end, or seeks my advice on the prevention of disputes.

No dispute is the same; each requires a consideration of the factual background and applicable law in order to determine the most efficient way in which to resolve the dispute. The true issues in dispute are identified and the requirements and expectations of the parties should be accommodated with the appropriate ADR process.

Upon completion of my inquiry form, a no obligation advice including a recommendation will be quickly provided as to the most efficient and cost effective way to resolve your dispute.

Disputes are part of commerce. How are they to be resolved?

Alternatives

  • The stronger party insists upon an outcome which is favourable to it and the weaker party simply accepts this outcome.
  • The parties abandon their obligations under contract and accept the losses where they fall.
  • One or both may independently seek recourse to litigation in one of their own national courts.
  • An agreement might be reached to allow one of the national courts to determine the dispute.
  • A form of Alternative Dispute Resolution might be pursued, for example mediation, conciliation, neutral evaluation or expert determination
  • Arbitration, an agreement to give a neutral third party the authority to resolve the dispute by making a binding determination.

Alternative Dispute Resolution processes are available to resolve your dispute – each is focussed on the needs of the parties.

Litigation – has serious disadvantages. It has simply failed to meet the needs of fast moving commerce.

Public, expensive, damaging to personal/ongoing commercial relationships and with varying degrees of complexity, may involve protracted appeals and delays which may not ultimately produce an enforceable order. National Courts may also be perceived by one party as not sufficiently independent or have the expertise to determine the claim.

Arbitration –the dispute resolution mechanism of choice in commercial contracts and essential for any cross border (international) transactions because international awards are much easier to enforce compared to court judgements.
You can actually avoid being successfully sued and if necessary, obtain a court order to stop any litigation.

How? By simply including a suitable dispute resolution clause in your contracts. This is constitutes an enforceable promise by the parties to follow an agreed process to resolve any disputes.

Why is this important?
By establishing in advance the parameters of how a dispute will be resolved, the parties can choose how the dispute will be determined, what law and/or institutional rules will apply as well as the location of any hearing.

There are great advantages in using arbitration where a determination is required;

  • Confidentiality in a process which accommodates all of the needs of the parties.
  • Flexibility, an arbitration may be conducted in a variety of ways, for example, on the basis of an exchange of documents between the parties setting out their contentions, with a hearing in a boardroom, via video, or on line. This means that personal relationships are far less likely to be damaged than through the conduct of long acrimonious litigation.
  • Application of expertise to a specialist field. Direct involvement by the Arbitrator.
  • Allows more than one Arbitrator to determine the dispute and to take the lead in areas of their own specialty.
  • Expedition, fast track rules will produce a very quick determination or recommendation.
  • The wishes of the parties are paramount.
  • Cost, circumstances and timing of the decision can all be agreed upon at the outset.
  • There is scope for constructive outcomes with consideration given to the possibility of resolution of the dispute through mediation.
  • Legal technicalities are avoided, leaving the Arbitrator free to focus on determining the issues. Restrictions on discovery of documents including cross examination means more efficient management of time and cost.
  • Finality, unlike litigation there are only very limited rights of review or appeal in most countries.
  • The award may be enforced in the same manner as a judgement of a Court and in the case of international arbitration against assets in another jurisdiction without the need for further proceedings.

Arbitration in Australia and enforcement of International Arbitral Awards.

 

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