Letter to the Editor from Francis Miller

Pupillage

I have read the interesting contributions from Nael G Bunni and Peter Horne (issue 45, May 2001, p.20-22). Peter Horne confirms the inadequacies in the system, but holds firm to the concept of keeping pupillage and, furthermore, he gives some dire warnings about negligence on the part of those who appoint arbitrators. Perhaps Peter would be able to tell us if he believes that the mandatory section 74 of the Arbitration Act (immunity of arbitral institutions) would be ineffective in its protection if a person who had not been on pupillage were ever appointed. Or, in the alternative, if the section is fully effective, in spite of Peter's views about negligence, will he be submitting proposals for the amendment of section 74, eg so that section 74 does not protect people who he considers would be so obviously negligent? Nael Bunni's contribution shows that he is aware of the problems and that he desires to find a better way forward.

In our endeavours to find a better way forward, it is essential that we really understand what we are talking about and what we are trying to achieve.

For example, why do we use the expression "pupillage" in the context of helping to make people fit to act as arbitrators? I don't believe that "pupillage" was a carefully chosen expression selected for its ordinary meaning, ie the state of being a pupil. I believe that it was the first word that rolled from the lips of those members of the Institute who were associated with the Bar, and also from the lips of others who sought to emulate the concept of training at the Bar (perhaps other members will say different, but that is of no real matter). The point is this: have we got the right word to describe a procedure for the effective and proper development of mature professional people, of all disciplines, who are interested in learning more about arbitration and the work of an arbitrator; and, moreover, who wish to be considered for acting in the capacity of an arbitrator?

In the context of what we are trying to achieve, it is essential for us to accept that we should not be seeking guidance from litigation, or from the work of the legal profession generally. In the activities of the courts, the concept of pupillage is about training people to operate within the framework of a procedure, which has been proclaimed by the courts, and which procedure must be complied with by everyone involved judge, lawyer, layman, etc. By comparison, in arbitration, the concept is about training mature professional people how to operate within a procedure which can be infinitely flexible, a procedure where no-one ever can tell us, in advance, the right way to conduct a particular arbitration. However, we can all be told about some obvious wrong ways. And we can all benefit from shared experiences.

The dilemma for our Institute is this: on the one hand, telling the world that arbitration is an infinitely flexible procedure, and, on the other hand, making sure that its Certified Members act in a prescribed manner which can be realistically examined before they are let loose on the world.

Francis Miller