Freshfields Lecture.doc

Be so wrong with reducing procedural strife by

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be so wrong with reducing procedural strife by setting forth the consensus in a clear rule, subject always to the parties’ right to opt out jointly. Either the norms are in fact widely accepted, and worthy of inclusion in a set of institutional provisions, or they are not commonly followed, and a litigant has an understandable concern about an arbitrator’s ad hoc invention. B. Perceptions of Fairness Specific pre-set rules would normally increase each side’s sense that procedural decisions were made in a principled fashion. The jagged side of a rule would not appear to be assigned ad personam , in what the French might call justice à la tête du client justice according to the face of the customer. Moreover, enhanced arbitrator concentration would be a side benefit of fixed protocols, in that tribunal energy and attention would not be diverted from the merits of the case to procedural squabbling. The existence of reasonably ascertainable standards lies at the heart of what Western civilization has considered to be the foundation for rational economic planning. In this context, one remembers the description of “rule of law” presented by the economist von Hayek: Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. 50 One might also recall the work of the late Harvard philosopher John Rawls, who proposed that those who create law should remain behind what he called a ‘veil of ignorance’ about the exact contingencies to which a rule might apply. 51 To be just, rules should be See generally Claude Reymond, ‘Security for Costs in International Arbitration’ in (1994) 110 Law Q. Rev. 501. 48 Over the years, it has been my good fortune to sit with some of the best arbitrators in the world (and you know who you are). Many of these eminent individuals have strong preferences for one set of procedures or another. Ironically, they often support their desired modus operandi with the confident assertion that ‘we should do things the usual way’. Yet what is usual for one may seem odd or impractical to another, leading careful observers to wonder, ‘If the best and the brightest do not agree, how can one expect arbitration newcomers to know what’s right?’. 49 Even in non-international arbitration there may be disagreements about how arbitral objectives should play out in practice. For example, in domestic commercial arbitration, the AAA has no rule on whether pre-trial oral depositions are allowed, often giving rise to considerable acrimony and uncertainty.
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