Arbitration Agreement 1
Arbitration
Agreement.[1] The undersigned
agree that in the event any dispute, controversy, claim, question or difference
(a “dispute”) shall arise out of or relating to this Agreement or the breach,
termination or invalidity thereof, the Parties hereto shall use their best
endeavours to settle such dispute. They
shall consult and negotiate with each other, in good faith and considering
their mutual interests, to reach a just and equitable solution satisfactory to
both Parties. If they do not reach a solution
within a period of thirty (30) days, then upon notice by either Party to the
other, the disputes shall be finally resolved by arbitration in accordance with
the provisions of the Arbitrations Act (Ontario) (the”Act”), and the following
provisions shall apply to the arbitration:
(a)
Either party may
commence the arbitration by notice demanding arbitration of the disputes which
shall be submitted to a single arbitrator who shall be Werner Keller.[2]
However, if he does not accept the appointment, then the parties may agree upon
another arbitrator, or either party may apply to the court to appoint the arbitrator. The parties acknowledge that each party is
directly liable to the arbitrator to pay one-half of his fees and
disbursements; however, the arbitrator may, in awarding costs, order one party
to reimburse the other party for part or all of that party’s shares of the fees
and disbursements of the arbitrator;[3]
(b)
We agree to abide
by and perform all directions and awards given and made by the arbitrator, and judgment
may be entered in any court having jurisdiction to enforce such decisions. The
parties agree that such decisions of the arbitrator are final and binding and
no appeal to a court is allowed on any grounds including any question of law,
except as provided in sections 46 and 48 the Act.[4]
Thus, the disputes shall not be made the subject matter of any action in any
court by either Party unless the dispute has been first submitted to
arbitration and finally determined by the arbitrator. Any such action commenced thereafter shall
only be for the purpose of enforcing the decision of the arbitrator. In any such action, the decision of the
arbitrators shall be conclusively deemed to determine the rights and
liabilities as between the Parties to the arbitration in respect of the matters
in dispute;
We agree that the arbitration proceedings shall not be open to the public or the media, and further agree that the proceedings shall only be attended by persons whose presence, in the opinion of the arbitrator is reasonably necessary for the proceedings. All evidence presented, documents produced and submissions made in the arbitration proceedings shall be kept confidential,[5] and the parties further agree to keep the outcome of the arbitration strictly confidential, except as may be necessary to implement or enforce the arbitrator’s award or as required by applicable laws or by order of the court.
[1] This
agreement takes much of a court’s usual jurisdiction and assigns it to an
arbitrator with limited court intervention because arbitration can resolve
disputes more efficiently, and thus more economically and quickly.
[2] The
parties can choose an arbitrator with necessary experience. In court, the
assigned judge may be unfamiliar with the business or technical issues; thus,
potentially increasing the risk of unpredictable outcomes.
[3]
Typically, arbitrators require the payment of a retainer at the beginning of
the arbitration process. Parties do not
pay the court for the judge’s time.
[4] One
advantage of arbitration is that you can, by contract, significantly reduce
rights of appeal. The Arbitration Act provides that you may
not contract out of the right of a party to bring an application for judicial review;
however the grounds are quite limited to issues like exceeding jurisdiction
under the arbitration agreement or bias or unfair or unequal procedural
treatment by the arbitrator or an award obtained by fraud.
[5] With
limited exceptions, court proceedings are open to the public and not
confidential. By using this arbitration
agreement, parties can keep the dispute resolution private, thereby preserving
economic interests and business relationships.
Expanding the scope of potential appeals to court would reduce
confidentiality and privacy protection available through arbitration.
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