The Role of Judges in Ad Hoc Arbitration

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.

2 comments

  1. Interesting findings and reflections, Tony

    My experience as Registrar of the LCIA was that a lot of parties were first time users of the institution. Many of them were experienced in, and trusted, ad hoc arbitration but counter-parties had persuaded them to go for the LCIA in a particular contract. The institution, and any arbitrators selected and appointed by the LCIA Court, had to win their trust during the arbitration.

    I would add that I didn’t find that retired judges necessarily handled proceedings well. They would sometimes behave as if they were still in court. I remember one retired Court of Appeal judge who was convinced that a short email from him with the two words ‘So ordered’ was an ‘award’.

    Like

    • Hi James, your latter point is certainly true, and is also reflected in comments that interviewees made (i.e. that some judges working as arbitrators make the mistake of thinking they are still in court). Interestingly, though, it was something that I have seen referenced more in England than in Scandinavia. Which perhaps reflects the larger traditional integration of judges into arbitration in Scandinavia than in England, and a resulting enhanced understanding by those judges that the two forms of dispute resolution aren’t exactly the same.

      That said, it is also worth emphasising that it isn’t that every judge in Scandinavia is involved in arbitration. Rather, while it was a prominent feature of the conduct of arbitration in the region, it was nonetheless specific individuals who worked actively, rather than something that every judge did. In that respect there is no doubt also a “market effect” going on in Scandinavia – judges who don’t adapt to the differences between arbitration and court simply won’t be the ones that get regular work.

      Like

Leave a Reply to James Clanchy Cancel reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.