For Lawyers

Arbitration is an out-of-court procedure for the settlement of disputes, under which the parties agree to be bound by the decision of an arbitrator whose decision is, in general, final and binding on both parties. Family law arbitration is now occurring in a number of countries around the world and is either binding by statute or by judicial acceptance of consensual arbitration.

The New York Convention (The Convention on the Recognition and Enforcement of Foreign Arbitral Awards) applies to international arbitration generally; but many countries have entered reservations concerning family law disputes. While there is no comprehensive international convention that makes arbitration binding in family law disputes, national courts are very likely to give effect to an experienced arbitrator’s decision when the couple have agreed to resolve the dispute in this way and to be bound by it.

In the International Family Law Arbitration Scheme, the remedy if one party continues with litigation in a country contrary to the arbitrator’s decision, is that the party is contractually obligated to reimburse the other party for all the costs of the arbitration. See further the IFLAS Arbitration Rules. In addition, it may well be that a party who continues with litigation in a country contrary to the arbitrator’s decision risks a costs award against him or her. However, these are issues on which you will need to advise your client. We cannot give legal advice.

If there is doubt about whether a court will accept the arbitrator’s decision, it may be appropriate to ask the court in your country to refer the matter to arbitration by consent or otherwise to give an indication whether it will treat the arbitrator’s decision as binding.

If you have any uncertainties about this aspect or indeed any of the arrangements of the scheme, please get in touch with us.