2009年6月ACCA試題：F4試題（全球）答案四

　　2 （a） There are numerous advantages to be gained from using arbitration rather than the court system：

　?。╥） Privacy. Arbitration tends to be a private procedure. This has the twofold advantage that outsiders do not get access to any potentially sensitive information and the parties to the arbitration do not run the risk of any damaging publicity arising out of reports of the proceedings.

　?。╥i） Informality. The proceedings are less formal than a court case and they can be scheduled more flexibly than court proceedings.

　?。╥ii） Speed. Arbitration is generally much quicker than taking a case through the courts. Where， however， one of the parties makes use of the available grounds to challenge an arbitration award the prior costs of the arbitration will have been largely wasted.

　　（iv） Cost. Arbitration is generally a much cheaper procedure than taking a case to the normal courts. Nonetheless， the costs of arbitration and the use of specialist arbitrators should not be underestimated.

　?。╲） Expertise. The use of a specialist arbitrator ensures that the person deciding the case has expert knowledge of the actual practice within the area under consideration and can form their conclusion in line with accepted practice.

　?。╲i） Finality. Appeals on arbitration decisions are limited and once the arbitrator has reached a decision the parties are bound by it and any award can be enforced through court action.

　　The United Nations Commission on International Trade Law （UNCITRAL） adopted a Model Law on International Commercial Arbitration in 1985. The model law applies where the parties to an arbitration agreement have their place of business in different states， or if the parties in dispute are in the same state， where the arbitration agreement designates a different state as the place where the arbitration has to take place. In addition， of course， the dispute has to arise from a commercial relationship， that is one relating to trade， although this term is interpreted widely.

　　The foregoing has emphasised the advantages of arbitration over court-based proceedings， but there are alternative grounds for the parties to prefer the latter procedure. For example， judges are experts in the law and have particular expertise in evaluating evidence and the statements of witnesses. Court decisions are also taken within the framework of the doctrine of precedent and therefore are not ad hoc decisions made on a case-by-case basis， as is the situation with arbitration. It might actually be to the advantage of one of the parties to have a particular issue determined by the courts in order to set a precedent for the future. Finally it should also be mentioned that the court-based procedure allows much more scope for appeal within its structure.

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