Mr Fali S Nariman on how to be reckoned as a “Good arbitrator” Pt.-2
An arbitrator, is essentially as the word implies an arbitrator whose primary function is not to merely adjudicate the dispute, but to also subsequently help in resolving it amicably with the co-operation of all the respective parties involved. If during the course of encouraging a particular settlement, he has to “caucus” of sorts with the other parties, and the settlement talks end up failing, and one or other of the parties do not agree to his deciding the particular dispute, then let him subsequently recuse himself from the relevant proceedings. The arbitration, which had initially commenced with talks of a kind of a settlement, must then eventually go on with someone else acting as an arbitrator. “Arbitration” must never be considered as excluding from its purview the settlement of a dispute before the arbitrator since this is the essence of the spirit of arbitration. The primary lesson is the awareness that International Commercial Arbitration is in no sense the exclusive preserve or fiefdom of lawyers. On the contrary, the world of commercial arbitration isn't premised in any way on its participants possessing any kind of legal qualifications. It is arguably in five of the 161 New York Convention countries that there is an express legal requirement that the arbitrator in question must be a qualified lawyer. The New York Convention 1958, the Washington Convention 1965 and the UNCITRAL Model Law of 1985, are all respectively silent on an arbitrator’s prerequisite qualifications. The only such requirement that is contained as such in the UNCITRAL Model Law is that the person that is appointed as arbitrator should be independent and even impartial.
International Commercial Arbitration could certainly be helped greatly along by lawyers as it has been so far and quite efficiently as well. But it could also do very well with in puts and suggestions from others as well. Mr Nariman mentions in his book that Dr Robert Briner had once recollected a construction case between an African country and a continental contractor in which the chairman was a former judge of the English court of appeal and his co arbitrator was an English engineer. The English counsel then subsequently estimated that the examination as well as cross examination of witnesses would last at least four to five weeks, however the mixed tribunal was ultimately able to reduce the hearing schedule to about twelve days, and then subsequently were able to successfully nudge parties to settle the entire case even before the actual hearing eventually was able to commence.
The spirit and vigour to do with international commercial arbitration can be revived if the ‘non lawyer arbitrator’ is not merely an occasional visitor in an arbitral panel, especially in disputes that require scientific or technical expertise, and if the arbitrator keeps constantly asking himself(or herself)in every single arbitral proceeding as to what justice demands in the fact situation which is presented; and then subsequently inquires as to whether there is anything in the applicable law which could militate against the tribunal arriving at a just decision particularly. In Mr Nariman’s opinion such a person would definitely warrant the tag of being a “good arbitrator”.
Source: The Arbitration Series Volume 2 Harmony amidst Disharmony: The International Framework- Fali S Nariman