Freshfields Lecture.doc

For the opposite reason that at contract signing no

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for the opposite reason: that at contract signing no one can agree on the arbitration framework. 71 The quest for balance brings to mind the Swedish word lagom , meaning ‘not too much and not too little’, which some of my Swedish friends proudly claim is unique to their language, somehow being superior to ‘enough’ and ‘just right’. A British judge articulated the contrast between arbitral discretion and rules as follows: ‘There is a choice: on the one hand [arbitrators] will go their own way and invent their own practices as to the way they will exercise their discretion; on the other hand they will individually decide that while the arbitrator should not slavishly follow court procedures it is in the interest of justice that there should be a measure of predictability and certainty’: Peter Bowsher, ‘Security for Costs’ in (1997) Arbitration (February) 36, at 38. 72 The Appendix infra lists some illustrative questions which frequently must be addressed in international arbitral proceedings. 18
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Rather than looking for the ideal structure (what surfers call ‘the perfect wave’), the drafters of procedural protocols must keep in mind the admonition of Brandeis J. that in most matters it is more important that ‘the applicable rule be settled than that it be settled right’. B. Surprise and Sequestration Admittedly, drafting specific rules will be a slippery job. For example, it may be quite difficult to hit upon a rule that reconciles the different approaches to surprise during hearings. Most good arbitrators reject trial by ambush, requiring that each side give reasonable pre-hearing notice of exhibits and arguments. Beyond that, however, there are dramatic differences in the measure of information that must be shared with opponents in advance of the hearings. There are those who see spontaneity in presentation of documents, as a positive element in encouraging candour, on the assumption that a witness caught off guard is less likely to give calculated responses that hide part of the truth. By contrast, others believe that giving advance notice of a document provides time for reflection that permits the witness and the law to understand the document’s significance, and thus, (in theory) to arrive at a more informative presentation, which helps the slow-witted arbitrators to grasp what has happened. 74 To take another example, there is much debate on whether one fact witness may be present when another is testifying. In some countries (such as the United States) a litigant may have a witness excluded from hearings when not presenting evidence (a process called sequestration), as a way to reduce the prospect that the testimony of one witness will influence that of another. 75 Yet many argue against sequestration (invoking the very same goal of enhancing the search for truth), saying that the presence of one witness with knowledge of the facts will embarrass into greater truthfulness a witness otherwise inclined to stretch or embellish reality. 76 As a parenthesis, in doing research on the question, I learned that the practice of
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