What Ails International Commercial Arbitration pt.2
In the BBC Reith Lectures of 1986, Lord John Herbert Mccluskey the Senator of her majesty’s college of law of Scotland stated eloquently that- the law as it has been laid down in a thousand eloquently reasoned opinions is actually no more than capable of providing all the answers than a piano is eventually capable of providing music. The piano needs the pianist and any two pianists even with the same score might very well end up producing diametrically opposite music.
The great English essayist of the eighteenth century, Oliver Goldsmith, chastised the lawyer’s predicament of citation of authorities. In his supposedly imaginary “Letters from a Chinese Philosopher Residing in London to his friends in the East”, he ended up questioning the necessity of prolonging a suit by citing opinions and reports of others: he stated that if arguing from authorities can potentially explode from every other branch of learning why should it ultimately be particularly adhered to in this specifically? He foresaw how such a particular method of investigation might embarrass every suit, even confound the student wherein ceremonies will be multiplied, formalities must increase, and relatively more time will be spent in learning the arts of litigation than specifically in the discovery of right.
According to Mr.Nariman, this is exactly what has been transpiring in international commercial arbitration as practiced. “Ceremonies” are multiplying, “formalities” are on the rise, and hence excessive time is being spent in merely adapting the “arts of litigation”, thus very often missing out on the true quest of arbitration: which is to do with the “discovery of rights”. Cedric Barclay, a renowned maritime arbitrator, had commented on some of the disquieting features of modern international commercial arbitration. His remarks were along the following lines and turned out to be incredibly prescient and foresighted since they are as relevant today as and when he had originally expressed them.
He stated that arbitrators do not have to merely imitate the courts. Commercial justice can be dispensed without the turn of phrase and the logic, which can be expected from the court of appeal. The AAA as well as the Commonwealth associations have survived for so long without giving reasons. The short and concise decisions, which have been given subsequently, were much superior to the essays in jurisprudence which the ICC and others at the time might have deemed appropriate. Their primary function was to decide and not teach or preach. It will surely be a fallacy that the publication of awards will end up teaching others something. More often than not it can ultimately lead to confusion and equivocation. It is eventually not the motivation which one abhors and detests, but rather the endless and never-ending expositions and padding which have been found to infiltrate systems. Brevity is the essence of wit; and justice eventually needs no sort of adornment he summed up.
Source: The Arbitration Series Volume 2 Harmony amidst Disharmony: The International Framework- Fali S Nariman