In many contracts, especially contracts touching and concerning the construction industry as well as employment contracts, reference is sometimes made to an arbitrator. The reference is usually by way of a special clause in the contract signed by the parties which would among other things say that any dispute arising under the contract should first be referred to an arbitrator. The clause may even outline the process for appointing the arbitrator.

Apart from the agreement of the parties in a contract, the court, pursuant to section 14 of the Arbitration Act (hereinafter referred to as 'the Act') may also refer the matter to arbitration. The section just mentioned provides that: "Subject to rules of court and to have any right to have particular cases tried by a jury, the court or a judge may refer any question arising in any cause or matter (other than a criminal proceedings by the crown) for enquiry or report to the Registrar or a Special Referee." In addition, Section 15 of the Act went further to give the court wider powers of appointment and among other things state that: "The court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein to be tried before an arbitrator agreed on by the parties or before the Registrar or a Special Referee." The Act defines a Special Referee to include any Resident Magistrate, Clerk of Courts or other persons while Registrar means Registrar of the Supreme Court.

Parties and witnesses

One of the most oft used provisions of the Act is section 5 which deals with the stay of proceedings. Generally, the section provides for "any party in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance and before delivery of pleadings or tasking any other steps in the proceedings apply to the court to stay the proceedings". The section is usually invoked when there are provisions in a contract between the parties and one of the parties proceeds to court with an issue touching and concerning a dispute under the contract without first refereeing the matter to arbitration as provided for under the contract.

The powers of the arbitrators are outlined at section 8 of the Act. The Arbitrator is empowered to administer oath and affirmation of the parties and witnesses, to state the award or part thereof or to refer special case for the opinion of the court and to make correction in any award of clerical error resulting from accidental slip or omission.

Generally, unless specifically provided, reference shall be to a single arbitrator who shall make his award in writing within three months after being called to act. The award is usually final and binding on the parties and on the persons claiming under them but does not bar any of the parties to file an appeal against an award if certain process of law was ignored or not properly applied by the arbitrator.

It would seem that there is much benefit in using an arbitrator to resolve disputes. It is certainly not as formal as court proceedings and on most occasions, it is possible to get an award much quicker than a judgement.

Maybe, more should be said about arbitration to encourage parties to contract to use this process. You must also bear in mind that arbitration is different from mediation, though both can achieve the same result, which is to settle a dispute out of court.

special case for the opinion of the court and to make correction in any award of clerical error resulting from accidental slip or omission.