Published: December 2008
Dispute Resolution and Litigation
I. CRITICISM OF A FULL SUIT OF ARMOR
During a conference held some years ago in Geneva, the English Judge Lord Mustill nostalgically referred to a time when justice was dispensed from under an oak tree. Such rural surroundings invoke an atmosphere of peace, which was a far cry from more typical proceedings, which first, could suffer from violence and greediness, and second, from the King’s “justice.”
That earlier, bucolic justice was far from the court system found in many jurisdictions today, the proceedings of which have become too long to be acceptable and too sophisticated, to the point that the substance of the dispute often lies buried below a thicket of procedural arguments. Similarly, winning on a procedural issue may gratify counsel, but it does not necessarily achieve real justice. Many young attorneys are trained to believe that they must win at any cost, and frequently accept this view without any doubt as to whether it is the right approach.
Arbitration could not remain unaffected by these trends. Originally growing out of a need for a more solid and speedy justice, arbitration has become entangled in a jungle of legal arguments. It has been transformed in many jurisdictions into a lengthy and expensive exercise.
The question then has to be asked whether arbitration is still a genuine alternative to litigation. Several voices have been heard expressing concern. A search for other alternatives has begun, some of which have been sought under the broad umbrella of Alternative Dispute Resolution (“ADR”). It has been suggested…
**Counsel admitted in Milan and Paris and a member as an international arbitrator of a set of barristers chambers in London, Chartered Arbitrator (UK), President of the European Court of Arbitration (Strasbourg, France). Authored Parts I, II, III and VI of this article.
***Independent arbitrator and member of the bar in New York and the District of Columbia. Authored Parts IV and V.