In order for an agreement to be governed by arbitration, the parties must have agreed to arbitration in an ‘arbitration agreement’. This ‘arbitration agreement’ can be a simple clause contained within the main body of a commercial agreement, it need not be a separate document.
If the parties have not agreed to arbitration by contract, then one party cannot impose an arbitration on the other party. One of the key principles of arbitration is that the parties have chosen this method as a way of determining their disputes. Note however that many sportspersons are made subject to arbitration because there is no other choice for a method of determining their dispute in their industry. You could therefore say that arbitration is forced upon some sportspeople because there are no alternatives.
If both parties are able, notwithstanding being in a dispute, to agree that arbitration would be better than determining a dispute at the court, they may enter into an agreement to arbitrate. Such an agreement can actually narrow the issues of a dispute and make a dispute more cost effective. In practice it is difficult to get the parties to agree to anything at all, once their dispute has begun. It is only later on along the process that agreements are more likely to be reached. However, sometimes the surprise that a matter has escalated to the level of a formal dispute may trigger settlement.
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