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Archive for March, 2014

THE FUTURE OF ARBITRATION

Lawyers understandably regard the Rule of Law as the Rule of The Law, that is to say the The Law of their nation states or an international consensus – insofar as can be achieved – derived from those states or bodies, such as the ICJ, created by them.

The word “Arbitration” means different things to different folks.  In history there has been various English legislation, of which the Arbitration Act 1996 is but the latest example of a series that may have begun with that of 1698 that followed the report of John Locke a year or two earlier.

The distinguishing feature of those Acts was that they said to disputants, in effect: “You may settle your disputes yourselves and come to the Court only as a last resort.”  Indeed, the current statute speaks in terms: “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;” and notably, “in matters governed by this Part the court should not intervene except as provided by this Part.”

The Act then makes it clear that the so-called tribunal is no more and no less than an extension of the parties themselves.  There are agencies, the ICC arbitration facility is one such, which exist to provide a commercial service.  That service includes administration and the use of a set of rules but, crucially the parties retain the ability to select their arbitrators (save in certain circumstances) and even the presiding arbitrator – often selected by the other two.

That is the arbitration contemplated by the lexicographers of OED when they wrote the definition: “The settlement of a dispute or question at issue by one to whom the conflicting parties agree to refer their claims in order to obtain an equitable decision.”

There is a difference between the arbitration I have considered so far and the arbitration beloved of my lawyer friends.  Their approach seems to appeal to authority, not the Judges but the arbitrations arranged, shall I say authoritatively.  The thread seems to run through the argument.  John Mortimer, in the context of his Rumpole stories named it as the golden thread of The Law.  The Law of states because what other Law can there be?

Now isn’t the time to seek an answer to that question.  Aristotle seems to have come close to it but I won’t try lest, like Icarus, I fall.

Sadly, there seems to be a difference that cannot be resolved.  Laymen (and those who drafted the legislation, in England and elsewhere – vide the UNCITRAL Model Law) expect the arbitrators to be their peers (as still they are, e.g. in trade associations).  Lawyers expect to clothe arbitrators with authority, even if it only a notional authority.

I have come to the conclusion, reluctantly, that the debate, if it is still a live debate cannot be resolved.  There is a street in the ancient city of Chester, where the upper stories of the houses overhang the pavement so that the occupants can converse from one side of the street to another.  Sadly, we like they, will never resolve our difference while we argue from different premises.

Perhaps, if we can think of an arbitrator – but of which kind?

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