Archive for August, 2012

There aren’t any.

Lest I seem disrespectful to some of my more distinguished friends, I must hasten to put my proposition into context. I commence with a contention that arbitration is not a process at law. Nor is it in private ouster of the jurisdiction of any national court or other manifestation of the nation state. I have argued in the past that Arbitration is not a derogation of the Sovereign Power of the Nation State. None of these.

I argue that it is simply the agreement of two parties in execution. The only rules that govern the process are those the parties agree and the inexorable rules of logic. The latter are mandatory, but mandatory rules of logic, not mandatory rules of law. I’m not suggesting that the arbitrators or the parties are free to behave illegally. The law of the place (not necessarily the seat) will prohibit violence, for example. I have known very senior lawyers, accustomed to administering oaths to witnesses, continuing to do so, illegally, in countries where the oath is not sanctioned. (Question for the enthusiastic: Would the illegal administration of an oath affect the validity of an Award?)

Generally law becomes an issue only when one or other party invokes it by requesting State intervention. The Sovereign Power was never derogated. It remained, awaiting initiation by a complainant or in pursuit of the so-called enforcement of an Award. I argue that an action for enforcement is no different from any other action to give effect to an agreement frustrated by one or other party. No different in principle, that is. Legislation in many countries allows for many of the steps of proceedings in contract to be bypassed. I say that is a valid approach because the steps so bypassed have been resolved by the will of the parties. Provided the Arbitration has been conducted fairly and as the parties intended, the Arbitrator’s findings of fact are findings on behalf of the parties. The Court doesn’t need to go into then because they aren’t in issue any more.

What is mandatory is that the Arbitration be conducted fairly and in accordance with the intention of the parties, but it isn’t a Rule of Law, it’s a logical conclusion of the arbitral agreement. Some provisions of legislation are mandatory by law, but they’re not international rules, they have jurisdictional limits.

I think that’s enough provocation for now, don’t you?

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