To the Editor,

It is now nearly 10 years since, on the 8th June 1993, the Council of the Chartered Institute of Arbitrators decided ‘by the narrowest of majorities’ that Fellows on reaching the age of 72 are not eligible for admission to or continued membership of the Panel (Report of Dennis James, Branch Newsletter, 22, November 1993, p. 14).

Now the members have been informed that the above decision has been abolished. The Council agreed that it was an unnecessary policy (CIARB Newsletter, January 2003, p. 3).

Although it is nearly 10 years ago, I can readily recall the unsavoury events which were played out at various meetings of the Institute as anxious members sought to find good reason for the decision and for the most part had to go away feeling very let down.

Some members took to writing letters and articles, for example: Mr Leonard Benson wrote to express the view that ‘discrimination against people on the grounds of age is as abhorrent as other forms of discrimination (sex, religion, colour)’(Branch Newsletter, 23, January 1994, p. 17). Her Honour Judge Jean Graham Hall wrote in both the New Law Journal and the Branch Newsletter. She described the decision in derisory terms and added, ‘the whole exercise smacks of a crude attempt to weed out the incompetent by discriminating against older members’ (Branch Newsletter, 24, May 1994, p. 21).

Although I was not then personally affected and, indeed, would not even now have been affected for nearly another decade, I wrote a few comments of my own. Amongst other things, I felt certain that ‘age was not a good criterion by which to evaluate someone’s effectiveness as an arbitrator.’ (Branch Newsletter, 25 September 1994, p. 26).

Such observations by many of the members had no effect. The decision survived. Many good and experienced arbitrators were effectively sidelined.

At times like this, when one sees the words that the 72 age rule was ‘an unnecessary policy’, it makes one wonder about many things. For example: one wonders how much in the way of fees those sidelined arbitrators may have been likely to earn by way of return for the great investment in time and money incurred by many; and, moreover, would they have any potential claims seeing that they were deprived of those fees as a direct result of ‘an unnecessary policy’?

Of course, it is fair to note that other younger arbitrators would have benefited from work which may have gone to those who were sidelined by the decision. And, as they say, it’s an ill wind that blows no good. However, that is little comfort for the many thoughts which must be going through the minds of those who were deprived as a result of a policy which was at the time severely criticised by many.

Personally, I believe that it would be a sign of proper respect to all those who have been affected both financially, and probably emotionally, by this ‘unnecessary policy’ of discrimination against them for there to be a proper explanation of the whole background to both the first decision and the recent statement.

I believe that such an explanation would be valuable even if it is simple, for example: that ten years ago, some influential people in their fifties and sixties who thought that old people of 72 were past doing the job properly have suddenly realised that their own capacities for undertaking the work of an arbitrator are still improving rather than deteriorating. That would be an understandable explanation because it would simply confirm an obvious human tendency. Of course, in the alternative, it may be an interesting start to some more questions if, at that time, it was thought that panel members of age 72 and above were considered to be quite suitable to carry on working as arbitrators, but, nevertheless, it was still decided that they should not be allowed to do so, at least, not to do so as panel members of the Chartered Institute of Arbitrators.

Perhaps our Branch Chairman can find a slot in the busy Branch programme to invite someone to a Branch meeting to give such an explanation. I am sure that there must be some senior members of the Institute who straddled both the decision to bar people aged 72 and over from the panels and the subsequent decision to abolish the rule because it was unnecessary.