Freshfields Lecture.doc

The question is not whether to have rules but how

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The question is not whether to have rules, but how many and what kind. 20 For some, the suggestion of diminishing arbitrators’ procedural liberty might bring to mind Dostoyevsky’s story of the Grand Inquisitor. Ivan recounts a dream about a sixteenth century Inquisitor who tells Jesus that it was folly for him to have offered humankind freedom. ‘Nothing has ever been more insupportable for a man and human society than freedom’, says the Grand Inquisitor. See Fyodor Dostoyevsky, The Brothers Karamazov , Bk V ch. 5. 21 Significant differences exist in at least five areas: (i) the familiar problems with discovery, discussed infra ; (ii) the way documents are used at hearings (civil law practitioners may be less likely to expect that documents will be authenticated and explained by live witnesses); (iii) witness testimony (judges rather than lawyers ask most of the questions in civil law jurisdictions); (iv) experts (continentals tend to expect that the arbitral tribunal will appoint experts, while Americans usually insist on each side presenting its own experts); and (v) legal argument (the common law tradition relies more on cases while the continental practice has been to cite leading professorial commentaries). See Siegfried H. Elsing and John M. Townsend, ‘Bridging the Common Law–Civil Law Divide in Arbitration’ in (2002) 18 Arb. Int’l 59. 6
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Consequently, one must recognise the enormous conceptual and practical problems attached to any suggestion of reduced arbitral discretion. More than once, the dilemmas of this topic have brought to mind the notice hanging at the entrance to Dante’s Inferno: Lasciate ogni speranza, voi che entrate — ‘Abandon all hope, you who enter here’. 22 Better minds than mine have sunk beneath the waves trying to resolve the tension between rules and discretion. As our French colleagues say, Je m’interroge . Thus, this article remains very much a work in progress, and invites the audience’s merciless critique. III. ARBITRATION’S ARCHITECTURE A. Institutional Provisions Let us return briefly to the architecture of arbitration. The American Arbitration Association lists over 30 different sets of arbitration provisions, with special procedures for securities transactions, finance, construction, collective bargaining, patents and employment disputes, as well as real estate transactions in Hawaii and Michigan and auto accidents in New York. On this side of the Atlantic, a visit to the Internet yields websites for at least a dozen London-based organisations devoted primarily to arbitration, and no less than 25 professional academies and trade associations that purport to sponsor arbitration as part of a more general mission. And there is no dearth of provisions developed by continental-based institutions and by Chambers of Commerce throughout the world.
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