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The Role of the CIArb In the Administration of Justice
Presented by Hew Dundas, Vice President of the Institute, on 10th October 2006
The Role of the CIArb in the Administration of Justice Presented by Hew R Dundas, Deputy President of the Chartered Institute of Arbitrators on 10 October 2006 to a meeting of the South East Branch of the Institute. We were indeed fortunate to have the Deputy President address our branch so soon after the Presidential visit last month.
In contrast to the President's talk which was entirely ambassadorial, Hew Dundas gave a mixed speech of his personal experience, the developing law of ADR, the Institute's progress and his wishes for the future as President in 2007.
Hew's delivery was superb: Clear, concise, witty and well paced. There were about twenty-five branch members in the audience, none in the front row. This prompted an anecdote about the seating preferences of various nationalities and Hew's technique for keeping the back row boys alert.
Whilst warming up for the main thrust, the Deputy President told us that he became an arbitrator by accident. His chosen career path in the oil industry over one in Tupperware was not an easy decision. He finally posted the acceptance letter to the oil company; just as well for us else we would have been obliged to inspect multitudinous samples of plastic storage boxes!
He proudly stated that in his oil industry career, including ten years as head of legal services for one of the oil giants, he had no litigation budget and did not need one because that industry is good at dispute avoidance. Dispute avoidance is the theme of his current work as a consultant.
Hew Dundas joined the Chartered Institute of Arbitrators in 1999 at which time a relationship between the Institute and the judiciary was lacking. Today the CIArb has strong links especially with the Technology and Construction Court where high praise has been lauded to arbitrators, particularly in one complex case that was appealed. Hew was in court when Judge Thornton said of John Sims in the Aintree case that he praised the arbitrator for his skilful handling of the complex legal issues. He allowed the appeal and referred the matter back to the arbitrator solely because a House of Lord's judgement handed down between the arbitral award and the appeal had effectively changed the law since the arbitral award.
Gone are the days when the judiciary looked upon arbitrators as mere valuers too stupid to decide complex matters of law. Gone are the case stated provisions of the 1950 Act which permitted an arbitrator to refer matters of law for the court's ruling.
Comparisons between S.69 of the 1996 Arbitration Act - the right to appeal on a point of law - were made to Belgian arbitration law where such a right no longer exists. With the abolition of the right to appeal in Belgium came an immediate cessation of all arbitrations taking place in that jurisdiction. Hew believes that the English and Welsh law has the balance right and that there is consensus on maintaining the status quo. The courts no longer wish to interfere with the private process of ADR.
In the same way that Mr Justice Jackson has famously said that "if you agree to arbitrate then to arbitration you will go" other judges have followed suit in mediation. Cable & Wireless v IBM was cited in this respect. On the other hand, Mr Justice Christopher Clarke has dismissed a claim for a stay of litigation in favour of expert determination. He declined the stay because on the facts of the case the matter would have reverted straight back to him. His decision was not on a matter of legal principle. If the parties want ADR in any of its many forms then the judiciary will normally stay litigation.
Statistically there is only a 2 - 4% chance of getting a S.69 appeal granted we were told.
The right to a fair and public hearing under Article 6 of the European Convention on Human Rights and its impact on Arbitration under the 1996 Act was considered. We were advised that an Arbitration agreement is an acknowledged opt out with caveats attached in S.33 of the Act. Without S.33 the Arbitration Act would be non-compliant with the Human Rights Act.
Pleased and proud to represent the Institute, Hew is a member of the TCC users committee; an excellent forum for the exchange of high level information between the judiciary and the Institute. Mr Justice Jackson who chairs the committee takes committee business very seriously. The Deputy President finds the judge extremely approachable between meetings should matters arise that need attention. Thus the committee provides an ideal route for communication between the Institute and the judiciary and a route through which the CIArb is able to advise the judiciary.
He then presented figures on the Institute's membership demonstrating that we are the largest body world wide not only in member numbers (11235 at the last count) but also in the geographical spread with 52% of the members residing outside the jurisdiction of England and Wales. We have training courses in 36 countries with a very high demand for CIArb courses in China. One ninth of the members come from civil law jurisdictions the remaining eight ninths from common law countries. There are powerful countries, such as France and the USA, where the Institute is not well represented and remedying this deficiency is one of the President Elect's targets for his 2007 Presidency.
Hew believes in the relevance of all forms of ADR including expert determination, adjudication, early neutral evaluation med/arb and arb/med. He stated that the CIArb will promote all forms.
A special challenge and opportunity awaits us in 2012 because the Olympic Games will generate many disputes both sporting and commercial - particularly in construction. We have a role in the promotion of dispute avoidance strategies and structuring dispute resolution in a series of stages. We can learn from the Hong Kong airport project which used the staged approach very satisfactorily with only one in four hundred disputes ending in court proceedings.
The CIArb has 140 schemes for arbitration covering, among others, retail and consumer activities, travel, double glazing and house-building related disputes.
In 1999 the Institute would have accurately been described as a society of construction arbitrators. In 2006 it is still a society, and with 48% of the members from England and Wales little has changed. We still have many members involved in construction, an industry in which disputes are commonplace. But, we have lost the negative tags and are beginning to play a role in the international scene. Hew said that the CIArb has made an outstanding contribution to the administration of justice in the many countries in which it is represented but "during my presidential year I will be travelling around the world having words with the judges that fight arbitration". His aim is to have all the judges echoing Mr Justice Jackson's sentiment: "I do my job, you do yours".
The Institute is soon to launch interview guidelines for the benefit of arbitrators in circumstances where disputing parties wish to interview their potential tribunal candidates. Arbitrator selection by interview is becoming popular, and has the perturbing potential to destroy arbitrators and arbitration. However, it is acknowledged that selection by CV alone may not be necessarily the most effective way of ensuring that the parties choose the right tribunal. The new guidelines will give a structure to the selection interviews and ensure fairness.
The UNCITRAL model law has existed for 30 years. Over the last three years revisions to the rules have been evolving. The CIArb, led by Past President Sir Anthony Evans, has been at the heart of the working party ensuring that our members' experience of arbitration throughout the world is taken into consideration.
So, does the CIArb have a role to play in the administration of justice? "Yes, a very substantial one" said our illustrious speaker.
Allen Davey