Mr Fali S Nariman’s on how to be reckoned as a “Good arbitrator” Pt.-1
To all those who administer international commercial arbitration it is imperative to strive for an arbitral regime, which will be able to rekindle the spirit and vigour of arbitration the same spirit that infuses life and energy in you.
Mr. Fariman, subsequently goes on to cite “How to Select an Arbitrator”, by Mr. Gary Benton, who is the chairman of the Silicon Valley of Arbitration and Mediation centre(SVAMC) at Polo Alto, California, who in turn stated that the biggest possible mistake in selecting a particular arbitrator isn't in not interviewing the person especially when you have incomplete information to do with the arbitrator’s expertise or even practice style.
The fundamental ethos of all arbitration whatever be the specific arbitrator’s expertise or practise style is best encapsulated in the expressive French phrase “l’esprit de ‘larbitrage”.Idiomatic french he says isn't easy to translate into English even with the help of an English to French dictionary. So, he turns to a friend and philosopher, M. Michel Gaudet, then President of the International Court of Arbitration of the ICC, Paris from the years 1977 going on till 1988: he was the first one to initiate Mr Nariman as a vice president of the court. In his words, Gaudet was the very living embodiment of all that was good and wise in arbitration and was always perpetually ready to help without expecting anything in return. Mr. Nariman wrote to him, asking him to sum up in his words the expression “l’esprit de ‘larbitrage”. Gaudet replied along the following lines, that the dominant feature of arbitration is mutual understanding in order to be able to solve the conflict that has at the moment occurred. The primary aim of arbitration is and should not be draw from the applicable law a decision against the very parties involved but to actually clarify, together with the parties, what exactly should be done in a given situation in order to achieve justice with co-operation. This is essentially what he expected from arbitration, regardless of it whether it was commercial or diplomatic,national or international. Eventually attaining this very process required that all along the way participants and stakeholders are guided by the adage of “l’esprit de ‘larbitrage”.
In simple terms, the primary words that are stand out would be “to achieve justice”, which would prompt Mr Nariman to draw attention to a part of the epistle of St. Paul which states that the “letter killeth..” it actually does in his opinion. There is just far too much of the “letter” among modern International Commercial Arbitration as practised, with much legal baggage taken on board the good ship ‘ICA”: owing to this, it moves extremely slowly and ponderously, often unable to weather the extremely strong seas of change.
Source: The Arbitration Series Volume 2 Harmony amidst Disharmony: The International Framework- Fali S Nariman