06 April, 2016
The widespread use of Arbitration as a means of resolving disputes has been criticised for inhibiting the development of commercial law, in the words of one of Britain's top Judges, Lord Thomas of Cwmgiedd.
In attempting to settle disputes in a pragmatic way without the need for the Courts to rule on the matters in dispute, Lord Thomas alleges that the Courts have been denied the opportunity to develop and elaborate on the common law thus creating areas of legal uncertainty. This, Lord Thomas believes, is causing problems for parties who cannot accurately gauge how the Court will interpret their disputes in light of the lack of recent precedent.
Lord Thomas has advocated a redressing of the balance between Arbitration and traditional litigation and he feels that the Courts' abilities to innovate and actively case manage should be encouraged in the form of greater volumes of litigation.
Quite how these comments will sit with business big and small whose main objectives are to limit legal expenditure and resolve disputes in an economic and pragmatic fashion, remains to be seen.
Clearly Alternative Dispute Resolution remains a key tool in the resolution of disputes and will be something that will continue to be encouraged by legal advisors and the Courts alike due to the obvious advantages in terms of costs and time. In light of Lord Thomas's comments though, it raises interesting questions as to how best to approach dispute resolution; clearly a balance needs to be struck and the continued development of new and alternative forms of dispute resolution should be encouraged but not to the complete detriment of litigation where the case merits the same.
The Dispute Resolution Department at Forbes specialises in advising clients as to the best options to resolve disputes and can assist with a wide range of different civil and commercial disputes.
If you are looking for any more information with regards to our services view our Dispute Resolution section. You can also contact Michael Rutter in our Dispute Resolution department via email or phone on 01254 222340. Alternatively send any question through to Forbes Solicitors via our online Contact Form.