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Dear Editor,
I have just read Francis Miller's article about adversarial arbitration and your comment in the September issue. I have been a Fellow of the Institute since 1992 and a Deputy District Judge since 1993. I agree completely with Francis, but for briefer reasons than his.
In court, a judge's duty is to "Do justice in accordance with the law". The law comes from the judge. The advocates may help him discern it, but he must apply his own judgment at all times. If a point of law occurs to him that the advocates have not mentioned, and he considers it relevant, he should raise it for them to comment. However, even if he fails to do so, he should not be inhibited from relying on it in his judgment. The reason is simple: he believes it to be the law, and he must follow the law. Similarly, if after all arguments are concluded his interpretation of the law differs from either or the parties', he must follow it and not theirs.
Your comment refers to the rules of natural justice and the requirement that each side should know the case he has to answer. With respect, that applies only to the facts of the case and to evidence of the facts. Everybody is presumed to know the law or to have access to somebody who does. There is no rule that each side must explain the law or reveal his legal arguments to the other side before the hearing. The CPR now provides for skeleton arguments in some circumstances, but that is for the judge's benefit, not the parties'.
Whether different rules should apply to arbitrations is another argument. In my view, as the law stands at the moment, they do not. Arbitrations are simply private trials. The arbitrator's duty is the same as the judge's - to do justice in accordance with the law. I realise that this may cause difficulty for non-lawyer arbitrators, but that does not detract from the principle. Any arbitrator will want to listen carefully to each side's arguments, and a non-lawyer may rely on them more than a lawyer would, but at the end of the day he must make the decision based on what he believes the law to be.
Kevin Beach
Editor's comments: Kevin makes some interesting points, but, as they apply to Arbitration in practice, I am not sure I can entirely agree with him. Arbitration may or may not be a "private trial", I am not sure. However, whether it is or not, Arbitrators are still bound by the Arbitration Act 1996. S33 of that Act says that each party must be given a reasonable opportunity of dealing with their opponent's case. Surely that case must include what they believe the relevant law is and how it applies to the facts? To know that case the other party must first state it, in other words they should reveal their legal arguments to the other side, and in sufficient time for them to be able to deal with them.
The Act also gives Arbitrators the power to "take the initiative in ascertaining the facts and the law" (S34). This latter part of this would appear to be tautological if, as Kevin suggests, everybody, including the Arbitrator, is presumed to know the law already. It would seem odd to me if, following that exercise, "ascertained facts" have to be put to the Parties, whereas "ascertained law" does not.. The original idea of Arbitration was for decisions to be made by experienced practitioners rather than lawyers. As one of those practitioners I would be very wary of deciding that I knew more about the law than either of the lawyers representing the parties, without first giving them both an opportunity to explain why I did not. My view is that I am required to do so by the Act or by the rules of natural justice, or both, but, even if I am not, common sense says I that should. This is especially so given that I am, in nearly all cases, able to invite further submissions from the parties at any time before making my decision. If after those further submissions, I still believe that my view of the law is correct, I would apply it.
Or am I being too cautious? (Peter Cousins)
Dear Editor,
Peter Horne has raised a very pertinent issue of whether Professional organisations have made CPD too prescriptive in relation to retaining Panel membership. However, it does not stop there, but is becoming compulsory and a matter of possible professional misconduct with limited scope for self-certification. For RICS members there will be increasing levels of enforcement and fines for non-compliance, but as a member of RICS Governing Council I have made the point that this policy development must not be treated as a business activity, and will only be justified if CPD opportunities are radically improved for all Members - with relevant meetings arranged within 2 hours driving time of place of work. Sadly Kent Invicta CPD, an independent Company formed by RICS Members, has now folded due to lack of support from the RICS.
Also on a personal note, twice I have tried to attend CIArb evening meetings in Reigate, but in two hours from my home in Charing got no further than Wrotham Hill and Maidstone respectively due to traffic accidents. Any chance of a meeting venue near a main line railway Station ? Regards Jeremy Hackett
Jeremy Hackett
Most professional institutions rely on the revenue generated from courses and CPD events to sustain them and so, to some extent, there is always a commercial element involved, although for professional institutions they have to consider what their role actually is. Although they will undoubtedly insist that this is primarily the support and education of the relevant profession a level of commercialism is required for them to survive economically. To that end CPD events will tend to be a business activity to some extent, often sponsored by sectors of the industries the organisations are part of.
With regards to your second point, the Reigate Manor Hotel is fairly close to Reigate Station. The SE Branch Committee is aware that not all members find Reigate a convenient place to meet and efforts are being made to arrange meetings around the area. Recently we have had meetings in Tunbridge Wells and other possible locations are being looked into.