One of the arguably less surprising things about commercial arbitration in many countries is the role played by former judges, and in some countries current judges. While former judges are becoming increasingly prominent in arbitration in England, they have long had a major presence in arbitration in the U.S. (JAMS, one of the largest arbitration providers in the U.S. has a panel of arbitrators that is overwhelmingly composed of former judges (full disclosure: I also work as an arbitrator through JAMS)), and in Scandinavia currently serving judges are frequently mentioned in any discussion of the leading local arbitrators.
Initially this should perhaps be unsurprising. Judges, after all, have substantial experience reviewing evidence and applying the law, and are also likely to avoid the kinds of decisions that will lead to an award being overturned, simply because of their own familiarity with the standards local courts will apply to review of arbitral awards. The interviews undertaken in the project thus far, however, actually present a very different picture of why judges may have such a prominent place in commercial arbitration in some jurisdictions.
This question of the role of judges in commercial arbitration was one that I pursued regularly while interviewing practitioners in Scandinavia (Denmark, Sweden, Norway). Indeed, interviewees also included both current and former judges who currently serve as arbitrators.
Overwhelmingly, it was not judges’ experience with decision-making or their ability to deliver awards reflecting the standards of the local courts that interviewees highlighted when discussing why judges have such a prominent role in Scandinavian arbitration.
Rather, what was highlighted was case management expertise. That is, interviewees did not express any particular concerns about the ability of regular practitioners to reach justifiable decisions and avoid review of their awards. However, there were concerns both both that inexperienced practitioners would lack the knowledge necessary to manage an arbitration efficiently, and that even experienced practitioners might be unwilling to control proceedings effectively in the face of procedural manoeuvring by parties.
Judges, by contrast, not only have substantial experience in case management, but will often have an authority derived from their institutional role that will enable them to resist unreasonable procedural manoeuvring.
This suggestion connected well with another issue that has regularly come up in interviews, and that will be discussed further in a later post, namely the place of “trust” in arbitration. In essence, in jurisdictions in which there is a court system that is at least honest and competent, even if perhaps slow, the question arises why parties should “risk” their dispute on an independent tribunal. Institutional arbitration is one answer to this question, as a competent institution can provide parties with assurance that their arbitration will be handled with at least an acceptable degree of efficiency.
Ad hoc arbitration, however, needs an alternative source of “trust”. Judges, it seems, have come to play that role in some jurisdictions. The inclusion of a judge as arbitrator in an ad hoc arbitration, that is, provides the parties with the comfort that, whatever else happens, the proceedings will at least be handled professionally and competently.