Brexit Legality – A New Twist?

I was intrigued by this proposition about the British condition. http://tinyurl.com/y2c47bmn. If Rose is correct, the consequences would be profound – The UK, by doing nothing, might stay in the EU willy nilly. #british#brexit

 

 

UKHUMANRIGHTSBLOG.COM

No Deal Brexit may be unlawful – a view from Rose Slowe – UK Human Rights Blog

Rose Slowe, Barrister and Honorary Research Fellow, argues that the UK cannot lawfully leave the EU without a deal. A No Deal Brexit may be unconstitutional

Read Full Post »

Same-sex Marriage: The Limit of the Law?

It can be suggested that, although a companionable relationship, presque spousal, properly may be granted the rights – and obligations – of a spousal relationship, no legal process can create a right to procreate without non-natural intervention.

It seems to be certain that (other than by parthenogenesis) natural procreation requires the pairing of two persons bearing XX and XY chromosomes.   (I accept that there are rare cases of XXY and XYY chromosomal combinations. I am not clear that they yet have played a part in the social debate.)   Insofar as the Charter could be interpreted otherwise, it was arguably illogical. Such an illogicality would undermine interpretation of the entire document.

Traditionally, an important purpose of marriage has been to legitimise children and protect inheritance. If that ceases to be the case, perhaps it would be simplest to abolish marriage altogether; it is, after all, a kind of bondage. Perhaps that is the long-term aim of the same-sex activists? It may be what is achieved!

Read Full Post »

Thoughts on the logic of Brexit

May I suggest that it is arguable that to adopt the result of a referendum as definitive and final is counter to the principles of a parliamentary democracy?   That is the logical implication of the judgment of the majority of the Supreme Court in the matter of Miller  ([2017] WLR(D) 53, [2017] UKSC 5).

Leaving to one side the question of whether or not the Referendum was intended to be binding – and, indeed whether voters were made aware of that, the words used in the Referendum Question being “Should the United Kingdom remain a member of the European Union or leave the European Union?”[my emphasis] – the Court made it clear that Parliament is paramount.

The OED defines democracy as “Government by the people”.  The people, not merely a majority but all of them.  That is why we delegate the task of ruling us to our choice of Members of Parliament.  It is not simply an oratorical flourish when an elected Member proclaims that she or he will represent all the constituency, those who voted for and those who voted against, to say nothing of those who did not vote at all.

The duty of a Member of Parliament was described in the great speech given by Edmund Burke to the electors of Bristol, in which he distinguished representation from delegation. The MP represents the interests of his constituents, not their opinions.  That is what he or she was elected to do, albeit on the basis of his or her declared political opinions.

In the Referendum on the European Union, the People have spoken.  Perhaps, but roughly half of them have said one thing and half the other.  Let it be clear, the decision has been the decision of the Government and now the House of Commons, not the People.  Seemingly, that is what the Supreme Court has prescribed.

At least we can be grateful that there is an Article 50.  In similar circumstances, in the 1860s, a bitter civil war in the United States of America, the American Union if you will, compelled the Confederate States to remain by force.  We are more enlightened now.  Tomorrow was another day.

Read Full Post »

Arbitration – a law unto itself?

Arbitration – a Law unto itself?  Fortunately, there is no copyright in titles, as I would like to take as a text the title of the 30th Annual Lecture organised by The School of International Arbit…

Source: Arbitration – a law unto itself?

Read Full Post »

Arbitration – a law unto itself?

Arbitration – a Law unto itself?  Fortunately, there is no copyright in titles, as I would like to take as a text the title of the 30th Annual Lecture organised by The School of International Arbitration and Freshfields Bruckhaus Deringer and given by the Right Hon the Lord Mance, a distinguished Justice of The Supreme Court, on 4 November 2015.

Figure 1 GBH

Most respectfully, and as an Engineer, not a lawyer, I mean the phrase sincerely, I found myself in agreement with the proposition of the very first paragraph which I set out here for reference:

Figure 2 Lord Mance

“This article argues that theses advocating an independent or transnational system of arbitration lack coherence. Arbitration is not, and should not become, a law unto itself. Arbitration already faces problems in maintaining coherence in its jurisprudence and confidence in its efficacy as a dispute-resolution mechanism, particularly given that no general means exist to ensure that awards are consistent. These problems could only be exacerbated by a declaration of unilateral independence.” [The emphasis is mine – GBH.]

My own, layman’s, analysis does not advocate that arbitration should be a law unto itself or indeed a law at all.  A private agreement enables one or more private persons, privately chosen without the engagement of the trappings of any legal system, to obtain for themselves and on behalf of the disputants the fair resolution of the dispute before them.  That resolution, in the form of the Award is, I argue, no more and no less than an autonomous document, recording a private decision, without any legal coercive force.

It is usual for legal systems worldwide to have respect for the maxim pacta sunt servanda.  That expression is more than a ukase; it is a statement of fact, a logical identity.  Pacts are to be served.  If words are not to be served they are words in the air but no agreement.  When persons agree, they share intentions.  Indeed, by a firm agreement they agree – they undertake – to be bound.  It’s a bargain.  Having achieved agreement, each person has a logical right to act as if the other(s) will comply with their common bargain.  One man’s right is another man’s obligation.  We may write the identity as pacta ≡ servanda. 

National laws recognise a law of contract, but the legal system does not, as a rule, become involved with the execution of contracts.  We don’t speak of the weaving and delivery of cloth, or the building of homes, or the bottling of fine wines as legal activities.  Of course they are not illegal, they are legitimate but they don’t require the intervention of the legal system.

In the ordinary way, business doesn’t require the intervention of the legal system, unless someone fails to comply with his bargains.  So it is with arbitration.  The legal system need not, and does not, intervene unless someone, be it a disputant or an arbitrator, fails to do as he or she agreed.

I say, “. . . fails to do as he or she agreed.”  One can say that the words work at two levels: first, the agreement to provide the wine, the house, or the cloth, and secondly the agreement within the agreement, the agreement to arbitrate.  Important though the first may be, at the very root and heart of the relationship between the disputants – they’re often called the Parties – we deal here with the arbitration agreement.  Whoever invokes the Arbitration Agreement is by custom the Claimant; the Party who responds and may make a Counterclaim is called the Respondent.

By the way, the idea behind arbitration is that, because it results from an agreement between two private persons (who may be individuals – real people – or legal persons such as companies or even Governments – but therein lies another tale) the classic form of Doe vs. Haddock is inappropriate.  We speak of an arbitration between Richard Roe and John Doe.  The distinction is subtle but of crucial importance.  It’s the distinction between trial by combat and seeking the help of a friend[1].  Lawyers, in particular, tend to lose sight of this distinction.  When taking off one’s wig, one should also unbuckle one’s sword.

Be that as it may, I argue that Arbitration Law is concerned with two matters and two matters only.  Those matters, for me are (1) process and (2) awards.

(1) Process.

By process, I have in mind to include all those things that must be done if disputants are to obtain the fruits of their arbitration agreement.  Parties to an arbitration are entitled to be treated courteously and any arbitrator should: (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and should: (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.

The previous paragraph is lifted, almost verbatim, from the English Arbitration Act 1996 but, law or no law, I argue that it stands to reason.  There is much flesh to add to the bones, perhaps too much – the English Act has four parts, four schedules, and one hundred and ten sections; Gary Born – a distinguished legal writer – wrote the Second Edition of International Commercial Arbitration, an authoritative 3600 page treatise, in three volumes,“Lector si monumentum requiris circumspice.[2]”; others have produced comparable tomes.  A lot for a simple agreement.

The point remains: arbitration procedure progresses privately between arbitrators and disputants who may, but need not, be represented by Counsel, unless and until one or both Parties decides to invoke the intervention of the Court.

Many arbitrations take place and are completed without attracting the attention of any court.  Some of those – especially in specialised markets and sometimes in construction – are conducted by arbitrators who have no legal training.  Indeed, one cocoa market known to me has a rule that only current traders in that market may be arbitrators at first instance.

(2) Awards

The decision of the arbitrator or arbitrators – the end of the process: end in both senses, the object and the termination – is the Award.  In days gone by and in some territorial jurisdictions, it was a bare decision – who should pay, how much, and to whom.  In contrast with the bare decision is the Speaking or Reasoned Award[3].  There is a great deal to be said about the Award but this essay is not the place or time.

The definitive word on Awards owes everything to logic and little, if anything, to law.  It was by Lord Donaldson in 1981:

“No particular form of award is required.  All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a “reasoned award.[4]””

When I say that Lord Donaldson’s dictum owed everything to logic, I argue that he describes exactly what participants logically can expect from the nature of the arrangements they made.  What concerns me for the purpose of the present essay is what the product is and what the owners can do with it.

I use the word “owners” advisedly.  An award isn’t a public document, although the word “publish” sometimes is used to speak of what the English Act calls “notification of award”.  The arbitrator or arbitrators are the authors but they have undertaken the task at the behest of the Parties and they have been paid, often handsomely.  There may be a question about copyright but, no doubt, others have discussed that.  The only persons who have an interest in the award are the Parties who commissioned it and particularly the Party who succeeded (I find the words “won” and “lost” inappropriate in arbitration and other ADR).

I began by saying that the award had no coercive force.  It can be used to settle with the other Party.  That is all, of itself, an award can do.  A snark’s life may be threatened with a railway-share; an arbitral award does not have even that power.

An award may be taken anywhere.  In theory, any Court in any country may be asked to adopt what it says, whether as a matter of contract or by the operation of that country’s arbitration law, or by the operation of the New York Convention 1958.  In practice there are two courses open if a Party fails to accept and act on an award: one to seek enforcement in the Court of the juridical seat of the arbitration; the other enforcement in a Court of a state that adheres to the Convention.

To jurists it may seem odd that the Court of the seat may purport to annul an Award but only within its own shores.  Another country may see things differently; while Courts respect one another, they do not have to agree[5].  Indeed, although Article V of the New York Convention 1958 creates a presumption that the foreign Court will respect a decision of the Court of the seat of an Award, the word “may” implies that there is no compulsion to do so.

Arguably, it is not the Award that has coercive force any more than any other private arrangement has coercive force.  It is the State and its Courts that have authority to coerce a Party who has not complied with his bargain.

The arbitration legislation of most, if not all national jurisdictions, provides for the more or less direct enforcement of awards made according to certain minimum standards, set out in the two paragraphs under Process and Awards above.  If an award has been made to those standards, there is no need for a Court to rehear the facts and the arguments; the award is enforced by the Court as if it is its own.

It is only in a Court that the Award acquires legal effect.  Unless an application is made to a Court, whether for enforcement or rejection, it remains no more than a record of the decision of a group of private persons, capable of affecting only the Parties who convened the group and appointed them Arbitrators.

Law binds everyone within its jurisdiction with coercive power.  Legal commentators say it has the Jus – the power to declare the law for everyone – and the Imperium – the power of coercion.  Arbitrators have no such powers.  They can decide for their Parties – but no-one else; they have no power of coercion.  Because their decision is not made with the authority of a Judge it has no validity outside the bond of the arbitration agreement.  It cannot therefore become a legal precedent.

Of course great jurists, sometimes themselves great and distinguished Judges, may be appointed arbitrators but they do not take their caps, wigs, or robes into the room.  When acting as arbitrators they set their offices aside.  Arbitrators are merely persons.  They may be great scholars, they may be persons selected at random.  In most jurisdictions the only qualifications are selection by the Parties – or by their agreed method – and compliance with any agreed Rules and the appropriate law of arbitration.  What Court would find itself bound by the word of the present writer, a layman by any criterion?

In conclusion, I submit that there can be no single system of arbitration, transnational or otherwise.  There is autonomy, but a necessarily capricious autonomy of individual arbitrations, each complete unto itself and impinging upon the legal system only in default.

I dare to go further than Lord Mance: Arbitration is not, and cannot be, a law unto itself.  Arbitration’s efficacy as a dispute-resolution mechanism depends upon the individual autonomy of each case – determined upon its own facts and circumstances.  In that sense, Arbitration Law – the cases heard in Courts – may have a jurisprudence but Arbitration per se does not.  The proposition that Awards should be consistent necessarily must be qualified by the facts of each instance; for outcomes to be constrained by external factors not known to the particular disputants would, I argue, be contrary to Natural Justice.

In that opening paragraph, Lord Mance wrote:

“Arbitration already faces problems in maintaining coherence in its jurisprudence and confidence in its efficacy as a dispute-resolution mechanism, particularly given that no general means exist to ensure that awards are consistent.”

I argue that it is the very fact, that arbitration is not constrained to a jurisprudence, and that no general means exist to ensure that awards are consistent, that leads to its inherent flexibility.  It is that flexibility which should give confidence in its efficacy as a dispute-resolution mechanism but not as a source of law.

Arbitration has no need of a declaration of unilateral independence.  Indeed, as there is no entity whose independence could be declared, the concept is a logical impossibility.  Each individual arbitration, however, is independent and autonomous unless and until one party fails to comply with his bargains and the other seeks recourse to the coercive authority of a State.

Arbitration, as a private process, has many advantages, but it cannot usurp the role of the Court.  It cannot proceed ex parte without notice[6].  Its interim measures are ineffective against third parties.  Both are examples of areas in which arbitral institutions have sought to flex muscles that do not exist.  Arbitration appears at first sight to be an alternative to the court but, where coercion is necessary, there is no alternative.

Geoffrey Beresford Hartwell
http://www.arbitrator-engineer-gbh.co.uk/

[1]              Up to a point, Lord Copper.  An arbitrator may be a friend to both parties, but in serious cases arbitrators tend to be selected for their neutrality, among other virtues.

[2]              Inscription in St Paul’s cathedral, London: “Subtus conditur huius ecclesiæ et vrbis conditor christophorus wren, qui vixit annos ultra nonaginta, non sibi sed bono publico. Lector si monumentum requiris circumspice Obijt XXV Feb: An°: MDCCXXIII Æt: XCI.             ”

which translates from Latin as:      Here in its foundations lies the architect of this church and city, Christopher Wren, who lived beyond ninety years, not for his own profit but for the public good. Reader, if you seek his monument – look around you. Died 25 Feb. 1723, age 91.

[3]              See my article, The Reasoned Award in International Arbitration http://tinyurl.com/p33wbj9

[4]              See the full judgment at http://tinyurl.com/lrxxmu6.

[5]              See for example a) Omnium de Traitement et de Valorisation S.A. V. Hilmarton Ltd. [1999] 2 Lloyd’s Rep. 222 Queen’s Bench Division(Commercial Court) before Mr. Justice Timothy Walker; b) France / 23 March 1994 / Cour de cassation / Société Hilmarton Ltd v Société Omnium de traitement et de valorisation (OTV) / 92-15.137

[6]              There are agencies among the many ‘institutions’ that have proliferated – especially since the Second World War – in international and domestic arbitration that have sought to find ways to act surreptitiously without the knowledge of one of the parties to an agreement.  That debate is for another day!

Read Full Post »

Note of Proposed Findings

No, it isn’t.  This is not a Note of Proposed Findings; it’s a note about the Note.  I’d better call it the NPF hereinafter.  It’s probably not best to have finished the last sentence with a preposition – if preposition it is – be it never so long but, as I often quote, “the moving finger writes and having writ moves on; nor all your piety nor wit can lure it back to cancel half a line, nor all your tears wash out one word of it” [the Rubaiyat of Omar Khayyam].

That’s especially true of Arbitral Awards, which is why I have a disinterested friend – in confidence of course – read mine before they are published to the Parties.  But perhaps it is literally true when the keyboard is replaced with a touchscreen.  Did Omar Khayyam anticipate the age of the tablet and smartphone when he wrote the verse?

Be that as it may, the NPF originated in the practice of Scottish arbitration.  When Parties desired to have an arbitration award that could be reviewed by the Court, they could ask for the award to be made in the form of a case stated for consideration.  It was helpful if the arbitrator or arbitrators produced an NPF so that Parties could ask for the award to take that due form.

A useful feature of the NPF was that it enabled a party to correct any mistaken impression of the evidence or argument.  Not that if drafted with care it would allow aspects of the matter to be reheard.

There seems to be no legal reason why an arbitrator should use the NPF more widely in most jurisdictions.  I suggest that it could be especially useful where one Party, perhaps tactically or through lack of understanding, has absented itself from the process and the Arbitrator has been appointed by default.  After all the details the recalcitrant or ill-advised Party will have been given, the NPF will become a final warning that absence will have consequences.

Some may object that an NPF would be giving a recalcitrant Party a second bite of the cherry and that would be unfair to the participating Party.  Arbitration isn’t a Court, however, where he who plays the better game wins.  Of course, in Court a Default Judgment may be overturned if an Appeal is successful.  Arbitration, however, is the product of an agreement in which one implication is that both parties intend the arbitrator or arbitrators to find the right solution to their mutual problem.  The Award, once written, is final, it might as well be carved in stone.  In the premises, what can be wrong with giving that absentee one last chance to say his piece before the die is cast – and the metaphor well and truly mixed?

It’s not a situation with which I have had to deal, but I would expect to consider a reasoned application before permitting the absentee to present evidence and argument.  That evidence and argument would be confined to that needed to deal with the NPF.  The compliant Party would be entitled to a rejoinder before the Award was made.

There is a possibility that a late Counterclaim might arise.  I don’t think that should delay the Award, which could be a Partial Award, final as to the matters with which it deals.  Directions for disposing of the Counterclaim could be added to the Partial Award.  I think that a Dispositive section in the Partial Award could well be so separated that it was clear what had been decided finally and what remains to be settled.

In an International context, I think it might be as well to give directions for settling the late counterclaimed matters in a separate document.  The Partial Award would then be final for the purposes of the New York Convention 1958 [http://www.hartwell.pwp.blueyonder.co.uk/ nyc_text.htm] of which Article V.1(e) provides, inter alia, that:

1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

. . .

(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

The first subclause of this provision is the basis for the assertion that an interim decision will not be legally enforced but it should be noted a) that the burden of proof is upon the party against whom recognition and enforcement of an Award is invoked and b) that even then the word “may” suggests that the Court has to be satisfied that its discretion should be exercised.  The curious wording of the Article is worthy of attention.  Scholars argue the distinction between recognition and enforcement, but I think it noteworthy that the Convention uses the singular phrases “it is” and “is sought”, denoting the two as a singular practical concept.

My argument is that, in the context of arbitration – or, for that matter, adjudication or expertise – it remains perfectly proper for the decision-maker to say to the Parties, and particularly any absentee, “On the basis of what you have told me I am minded to find thus and so”, making it clear that his or her mind remains open and flexible.  The NPF is a formal representation of that principle.

Read Full Post »

Talk in the Upper Lecture Theatre on the Dispute Process known as Med/Arb

On June 25, 2015 there is a talk in the Upper Lecture Theatre of the King’s Inns from 6–7pm on the dispute process known as med/arb. Many law students and practitioners will be familiar with the individual use of mediation or arbitration as an alternative to the court system. Ms Justice Laffoy, of the Supreme Court, chairs the event where Scotland’s leading mediator John Sturrock QC will discuss with well known Irish barrister John Gordon as to the circumstances where allowing for the use of arbitration after an unsuccessful mediation has already occurred may be helpful.
Arran Dowling-Hussey, a friend of mine with whom I share the distinction of being a Consultant with the Kolkata-based legal boutique arbitration specialists, KoVe Global, called my attention to this event, still anticipated at the time of writing.
As a layman, I wondered why lawyers thought the matter in need of study when nothing seemed simpler than for two parties in conflict to say, to a friend, “We have a problem. Would you please be so kind as to help us find an agreement and, if an agreement isn’t possible, please decide the issues for us? We’ll abide by your decision.”

What more was there to say? Well, I don’t suppose the word ‘friend’ would be very welcome to my lawyer colleagues. Although the Commerçants of yore would appeal to one of their own, sometimes but not always a doyen of the trade or profession, to resolve their differences – at the traders in the commodity markets of London still do – the law works very differently. Ignorance is not merely bliss; it’s a prime qualification. Think of the wonderful dicta of London Judges. Folk of a certain age will recall the Judge who asked “Who are the Beatles?” at the very height of their fame.

The Canon Law regarding who may and who may not marry is embodied in a Table of Kindred and Affinity in the Book of Common Prayer. A man may not marry, for example, his wife’s daughter’s daughter; a woman may not marry her father’s mother’s husband. It’s a complex enough list but is as nothing compared with the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration, of 27 pages. The idea of appointing as arbitrator someone you both know and trust horrifies the IBA, as does, by implication, the idea of seeking the judgement someone whom you know to understand your business.

That Justice is blindfolded, everybody knows. Except that she isn’t. There are statues of a blindfolded justice, of course. I haven’t attempted a formal census, but there seem to be as many representations of Justice sighted as there are blindfolded. Sometimes she wields the great sword of state, almost always the symbolic scales that share her name. Symbolic, of course, of Jus, of what is right and true, while the sword symbolises the Imperium, the coercive power, of the State.

Two important examples of statues of a Sighted Justice are the Statue of Peace through Justice at the Peace Palace in The Hague and the Statue of Justice in London atop the dome which caps the Central Criminal Court in Old Bailey. I’ll return to the value of sighted Justice later. For now, I am concerned with those two symbols – the scales, Jus and the sword, Imperium. Together, they represent the decision-making power of the state and its coercive authority. Power and authority that are vested in the Court.

It is not unusual to see it said that arbitration exercises Jus and not Imperium. I’ve said as much myself, but it oversimplifies the matter. Jus is the product of public judicial reasoning and, depending upon the competent jurisdiction, binds all who fall within that jurisdiction. Where the doctrine of stare decisis is observed, it becomes a part of the system; where stare decisis is not the rule, it yet will be persuasive.  Arbitrators have no coercive power and no public authority. An Arbitrator’s Award is merely a statement of what a private person has said should be done, no more and no less. Unlike a decision of the Court the Award binds no-one but the parties. Even the parties are bound only by their own agreement.

Arbitrators have no coercive power and no public authority. An Arbitrator’s Award is merely a statement of what a private person has said should be done, no more and no less. Unlike a decision of the Court the Award binds no-one but the parties. Even the parties are bound only by their own agreement.  Interestingly, because the logical effect of the Award is not a product of the legal process of any state, it has no territorial limits. It is in the same words and says the same things wherever it is taken.

Interestingly, because the logical effect of the Award is not a product of the legal process of any state, it has no territorial limits. It is in the same words and says the same things wherever it is taken.That simple fact is celebrated in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York 1958 (NYC or NYC 1959). This Convention, to which 155 Nations have subscribed at the time of writing, does not alter the Awards, which remain true wherever they are found. What it does

That simple fact is celebrated in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York 1958 (NYC or NYC 1959). This Convention, to which 155 Nations have subscribed at the time of writing, does not alter the Awards, which remain true wherever they are found. What it does is ensure that an arbitration agreement or an arbitral Award will be recognised and, more importantly, that the process for enforcement will be no more onerous than it would be for a domestic Award.This last provision if important because enforcement is the link between the Award and the Law. Often, parties will comply with the Award of their own volition. No Convention, no law is necessary. However,

This last provision is important because enforcement is the link between the Award and the Law. Often, parties will comply with the Award of their own volition. No Convention, no law is necessary. However, most legislation provides that, provided certain essential requirements are met, an Award will be given the authority of a Court judgment and enforced by the Court. Courts will respect the private agreement of the parties as the source of the Award and will not seek to reopen the arbitrator’s fact-finding decision.

The great difficulty of connecting mediation with arbitration is not the inadvertent remark of the neutral during the discussion. Professional care should prevent that. The prime difficulty is the so-called caucus when the mediator moves between the two (not more, please!) consulting them each on a without-prejudice basis.  It is argued that the mediator, having learned privately what the two parties are expecting, hoping, or prepared to achieve, would apply that knowledge if later required to act as arbitrator.

This argument ignores two factors: first that nothing revealed without prejudice can be evidence in the matter; secondly that nothing capable of being evidence may be concealed knowingly.  In addition, modern arbitrators generally have to support their Awards by logical reasons.

I suggest that there is little difficulty if caucusing is not to be attempted; if it is, however, it would be as well to have the written agreement of the parties to the detailed procedure.

Of course, arbitration can be used to settle the entire dispute when mediation has failed. It can also be used in the course of mediation to determine a knotty point – perhaps of law but possibly of fact – to enable the mediation to progress.  Good luck to all my friends in Dublin.

Read Full Post »

They Wanted to Close Her Chapter

A Mediator’s Dilemma

John is a book dealer who is also an experienced mediator.

Pauline has worked for a few years for Big Red Books as a sales agent with a West Coast territory. Mal Lupus is the new Sales Director of Big Red and wants to conduct future sales through a Website he has commissioned recently. He decides to terminate Pauline’s Contract –it has three years to run – and approaches John to mediate the termination settlement. Pauline agrees.

At the open mediation session, Mal says that he is sorry Pauline is losing her income but the advance of the Internet makes the Area Sales Agent a thing of the past and Big Red can’t afford them anymore. Three month’s salary is all he can offer with no compensation for lost commission. He needs her to sigh a “No Competition” agreement for the next five years.

In caucus, Pauline tells John that she feels that she has nothing to bargain with and asks him if he will try to see of Mal will improve his offer.

In Big Red’s caucus room, Mal explains to John that he is prepared to extend the payment to four months but he insists on the “No Competition” agreement because, he says, Gabriel White of Little Blue Books has already approached him and asked if he will part with Pauline. He wants her to launch a new range. He will pay her more with a similar rate of commission. Mal is worried about that competition. He says he is telling John in confidence to explain why Pauline’s signature is so necessary.

What should John do? He doesn’t have long.

Read Full Post »

Coalition for Marriage (C4M)

I make no bones about it: I support Marriage in its ordinary meaning.

I’m certainly not homophobic and I support the idea of partnership in whatever pairing.  I think that folk in stable, on-going partnerships should share whatever rights may be available – taxation as a household, shared property, rights on death of a partner.  That would apply to same-sex pairing, brothers, sisters, mixed siblings, and parent-child relationships.

However, I don’t like the way the modern trend, to use the word ‘Marriage’ to include all these pairings, has become a vehicle for bullying those who prefer the natural use of words like ‘Marriage’.

In this I support C4M – so sack me or cut off my pension!

My grouse is that C4M’s videos have a note: “ Comments are disabled for this video.”  – How’s that for free speech and open dialogue?

Read Full Post »

Use of Experts in the Service of the Tribunal

CENTRE FOR INTERNATIONAL LAW STUDIES

Salzburg Arbitration Programme, June 15 – 18, 2000

Conference on International Commercial and Construction Arbitration

Session 12: Use of Experts in Arbitration

	There is a risk attached to the use of experts in the service of the Tribunal. The expert, the person experienced in the business or techniques of the dispute, can start a cold breeze of logic and common sense blowing through the dusty rooms of the law.  Involve an expert and you involve someone to whom the truth and the facts are more important than the tactics and games. More seriously, you involve someone to whom justice and fairness are more important than the esoteric details of positive law. Someone whose frustration, at the obfuscation found in much modern legal practice, sometimes may result in steps towards the truth being taken much more quickly than billing practice normally would permit. My lawyer friends should be warned that, by bringing an expert into the service of the tribunal, whether as a member of a tribunal, as a sole arbitrator or as the tribunal’s own expert, they have a tiger by the tail. Let me recapitulate briefly: I suggest the characteristics of an expert, and for this purpose I mean an expert in fields other than law, to include knowledge and experience of his or her field – an expert knows what he or she is talking about; the skills of logic and common-sense; an ordinary man’s, or woman’s, sense of justice and fairness; skills of communication and exposition, at least related to the field of expertise and often more broadly related – an expert knows how to express his or her findings or opinions.   Disputing parties, seeking a way to resolve or determine their dispute, may well look at those characteristics and think that they are precisely what is required. That is right and that is, of course, the original purpose, the raison d’être of commercial arbitration, although a modern observer could be excused for thinking otherwise. That was how arbitration began in commerce, before the modern structure of nation states became what it is today. Merchants would choose one of their peers, preferably one whose prestige and reputation put him out of the hurly burly of immediate competition, and agree to accept his decision. He was the arbitrator – knowledge and experience, logic and common-sense, sense of justice and fairness, ability to communicate his findings. It was all that was necessary. Now is not the time to discuss how the need for control by the State has led to a corruption of the process. I have discussed that elsewhere, and the move towards a globalization of trade eventually may mean a return to the standards of the past, as trade once again passes beyond the grasp of nation-states. My immediate point is that, far from being an exception to the arbitral process, the use of an expert is the natural, the obvious way to determine a private dispute in a specialist area of trade or professional practice. That is my starting point. Of course there are trade disputes in which there is some obscure point of law; there are others in which a suitably obscure point of law may be invented. My essential proposition, however, is that most topics in trade and commerce are best understood by people in trade or commerce, experts in the field. That must be so, otherwise they would not be able to trade successfully day-by-day, as obviously they do. That is why the expert plays an essential role in the service of the tribunal. I will now turn to the principal ways in which that service may be provided. In the limited time available, I will deal with three categories. First I will touch upon the role of the expert as a sole arbitrator and the ways in which, if necessary, additional legal support may be brought into the room. Secondly, I will discuss the expert as a member of a plural tribunal, his or her relationship with others, and the possibility of creating a “dream team” to deal with a specific dispute. Finally, I will look at the task of a tribunal-appointed expert and the relationship between the expert and the tribunal. Before doing so, however, I would digress for a moment to discuss the relationship between two fields of law. For want of better definitions, I shall call them Positive Law and Natural Law. Positive Law is what it is. Holmes once said, to an attorney in his court, “This is a court of law, young man, not a court of justice.” A great jurist, leader of the American Realist school of jurisprudence, whose definition of positive law is perhaps the most exact that can be found, he was right. To paraphrase something else he said, Law is no more and no less than the prediction of what a court will decide in practice. I would not presume to argue with that; it is unarguable. As it happens, although I teach in a Law School, I am an engineer. Engineering is variously described as a useful art or the application of science. The aim of engineers, and I quote the Institution of Civil Engineers in London, is the harnessing of the great forces of Nature in the service of mankind. Please think about that for a moment. No one is beyond the laws of nature. I and my colleagues serve the laws of nature every day of our lives. If the bridge is not strong enough, it falls. Engineers know well the famous accident to the bridge at Tacoma Narrows and it exemplified what I want to say. Because of a peculiarity of the wind through the gorge, and the design of the bridge – it was a suspension bridge – oscillations were induced in it and became progressively more severe over a period, eventually it broke and sent at least one abandoned vehicle down with it. The incident led to changes in design to take account of the effects of wind. It was not the first instance of a man-made bridge failing in the wind. The Tay Bridge Disaster, in the nineteenth century was another. Now, there would have been time, once the Tacoma Narrows Bridge started to oscillate, to apply to the court for an emergency injunction to prevent it. I daresay that it would have been easy to persuade the Judge of the public interest. But, and this is the point I wish to make, the injunction would not, could not have been effective. The bridge would still fall. Canute demonstrated to his courtiers that all his undoubted power could not cause the tide to turn. Galileo admitted to his inquisitors that the Earth did not move around the Sun. It was res judicata, but nobody told the Earth, and still it moves. That is the nature of the law I serve. Unforgiving, inflexible, certain (but only insofar as it is correctly known). A hard mistress and not one whose rules may be changed by statute, by fiat or by a determination of the court. Natural Law. And Natural Law governs both material and immaterial matters. There are laws of Physics, Chemistry and Mathematics, but there are also Laws of Aesthetics, of Logic, of Morals and of Human Behaviour. We specialise, of course, and we can learn more of some Natural Laws than we can of others, but none can pick and choose which Natural Law to apply. It applies without our intervention. Now this may seem a little remote from Commercial Arbitration, but it is not. The principles of the Law of Obligations are essentially Natural Law principles. In Contract, they spring from the logical consequences of the ability to communicate ideas and wishes and, in particular, promises. In other areas, tortious obligations, they spring from the twin principles of free will, which makes us responsible for the consequences of our actions, and our duty to one another, a necessary part of social existence. And Arbitration, of course, is a creature of the promise. It has a foundation in Natural Law. That is fundamental and inevitable. International Arbitration is, by definition, universal; the Laws of nation states, the only positive Laws, are not. I am not here discussing state recognition, that is another matter altogether. That digression has been to show you something of the thinking of a non-lawyer and the context in which a non-lawyer may approach the resolution of disputes. No one ignores positive Law, of course, it governs our practical decision making. Nevertheless it is not our starting point. I will deal only briefly with the expert as sole arbitrator. The advantages of trusting a dispute to someone who understands the nature of the problem are self evident, as is the moral strength of an agreement to abide by the judgement of a peer in one’s field of work. There are three aspects which need attention. One is the need for such and expert arbitrator to acquire the appropriate procedural skills, for which training is available. Most senior professionals, in every sphere of activity, have experience of managing meetings fairly. Another is the occasional need for the arbitrator to seek legal advice, which has always been a traditional right, although occasions for it are rare. The third is the problem of transparency, which is overcome by the expert arbitrator setting out, for the parties, such personal knowledge as may be relevant, and inviting them to deal with it if they wish. Expert arbitrators may be in a minority on the international scene today, but there are several of them and there may well be a recovery of numbers as training becomes more widely available. The advantage of at least one or two experts in a multiple tribunal is also, I suggest, self evident. That is especially so in modern international arbitration, where the party appointed arbitrators are required to be neutral and not to act as a kind of quasi-advocate for their appointers. Non-lawyers are not accustomed to advocacy and do not have the contentious instincts of the professional advocate. That makes them well suited to a neutral role. I wish particularly to alert you to the enormous opportunity which the parties have to create an ideal tribunal for the problem they have to resolve. I have called it the “dream team” approach. Imagine, if you will, a build-operate-transfer project, to manufacture ethical pharmaceuticals to be marketed in an area where only imported products have been available. Now assume that disputes have arisen, during construction, about the performance and profitability of the plant. What I suggest is that the parties and their lawyers could put together a tribunal which comprised, say, a chemical engineer, an expert on project finance and a lawyer familiar with the country where the construction was taking place. Not only would those men or women be able to deal with their respective fields. If given the opportunity, they would create a collegiate team which would be able to discuss issues from widely differing points of view, bringing a synergy to the arbitral process. The whole would be greater than the sum of its parts. That is what I had in mind when I spoke of the relationship between the members of a tribunal. It is a collegiate relationship, between colleagues, not a relationship of contentions. One distinguished commentator has suggested that the most important step in an arbitration is taken when the arbitrators have dinner the night before the first meeting. I think that the opportunity, in arbitration, to create tribunals in which differing methods of thought interact in the interest of truth and justice, is one of the most exciting features of modern jurisprudence. It may be an exaggeration to suggest that experts eventually will play a vital role in making justice open and transparent, but I believe the possibility is there. It is why I teach and it is why I came here. We may have seen the peak of the closed legal approach of the nation-state, at least in commerce and in civil litigation. Openness is the opportunity offered by the twenty-first century and all the modern educated professions have to play their part in it. Now I turn to the service which the expert may give as witness or investigator for the tribunal. I will not deal with experts appointed as members of the legal teams of the parties; others will discuss that role. Various legislation covers the appointment of a tribunal expert. The English Arbitration Act of 1996 refers to advisors, assessors and experts, but does not differentiate greatly between them. Distinctions between those roles may be somewhat technical; Article 26 of the UNCITRAL Model Law(2) refers only to experts and, I suggest, sets out the natural requirements for the task. An expert or experts may be appointed – no prescription as to the nature of the expert – and, unless the parties agree otherwise, that expert must be available for examination. The Model Law also imposes a duty of co-operation on the parties. In any reference, the decision as to whether or not to appoint an expert is a decision of the tribunal. Although the parties have the right to agree otherwise, the tribunal’s discretion is complete, both as to whether to appoint an expert and as to who the expert should be. In practice, however, it often may make sense for the tribunal to invite the parties to agree upon an expert. The expert’s role is defined by the tribunal, in the light of the views of the parties. Ideally, there should be precise terms of reference, which may take the form of a series of questions. The expert can play a useful role in suggesting additional questions and in drawing up the terms of reference, but the final decision will be that of the tribunal(3). The tribunal’s expert is an extension of the power of the tribunal to make enquiry. That was brought home to me by a distinguished professor of law who described a mission which arose for a tribunal of which he was chairman. The field of the dispute was esoteric, and the tribunal could not find an expert in the field who did not have connections with one or other of the parties. There were documents to be examined and enquiries to make. Accordingly, the tribunal appointed a gentleman, not from that field of business, but from a generally similar discipline, to examine the documents, to make the enquiries and to report to the tribunal. Almost an agent de police judiciaire, you might think. One method of proceeding, which I have found successful, is for the parties to give their reasoned answers to the questionnaire before the expert’s enquiries begin. This gives a structure to the enquiries. Then, the first report is given for their comments and the final report may incorporate the comments given by the parties. That may make unnecessary the examination of the expert before the tribunal, but the tribunal may wish to have the expert present to comment upon any further evidence. Because the expert can be examined, he or she may be relieved of the obligation to ensure that both parties are present at any phase of the enquiry. That can save a great deal of time and expense, but the expert must report upon anything he or she takes into account. The principles of Natural Justice are not suspended for the expert, only made a little more practical. Any basis for the expert’s opinion must be made known, and any documents made available to the expert ordinarily should be available to the parties and the tribunal. An exception may be made for trade secrets; the tribunal may order some material to be shown only to the expert, who may then refer to it in a way which protects the secret. It is a procedure which requires care by both expert and tribunal. There is much more to be said about the expert in the service of the parties and in the service of the tribunal. What I have said here has been only an outline. There is a more extensive treatment on the author’s web site at<http://www.hartwell.pwp.blueyonder.co.uk/Paris.htm> and I am always happy to answer questions and to discuss the topic generally.

Notes:

	1	External Professor, University of Glamorgan School of Law Professor, Brunel University Law School Senior Partner, BHA Cromwell House, Consulting Engineers return
	2	Article 26. Expert appointed by arbitral tribunal (1) Unless otherwise agreed by the parties, the arbitral tribunal (a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; (b) may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection. (2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue. return
	3	In English litigation practice, under the Civil Procedure Rules (Article 35), the expert is not strictly a tribunal’s expert but a single joint expert appointed jointly by the parties. This leads to his being instructed by the parties, sometimes jointly, sometimes in two separate sets of instructions. The Rules are new, and the implications of the approach have yet to develop. return

Read Full Post »