Author: Sir Anthony Evans*
Published: April 2011
1. The first draft I saw of the program for today’s discussion contained a misprint. It read “Arbitration and the Rule of Law” and immediately I panicked. “What have I let myself in for?” I asked myself, though without waiting for an answer I began to think that, maybe, it could be interesting to speculate whether arbitrators are or should be concerned with the wider principles of justice and human rights and matters of that sort. However, the misunderstanding was removed, and I am asked to address “Arbitration and the Role of Law” which, as will appear, I would prefer to paraphrase as “Arbitration and the Role of National Courts.”
2. One preliminary – all that I or anyone else can say is conditioned by our personal experience, whether as arbitrators or judges or, as I have been fortunate to be, as both. Whilst acknowledging this, I shall try to speak of institutions rather than individuals, and of the relationship between two essentially different processes of dispute resolution, between arbitration and proceedings in national courts.
3. I appreciate that the background to any discussion of this topic is a widespread feeling, or wish, among some practitioners, that international commercial arbitration (which will be my primary concern) has now achieved some transnational or independent status which makes it wholly independent both of national courts and of national systems of law. I am not qualified and I do not intend to venture into that jurisprudential debate. My object is to describe things as I see them and I leave it to others – and to you – to decide whether international arbitration has achieved the total independence that is sometimes claimed for it.
4. So I begin with some basic propositions that may or may not be challenged, though I hope not. These are:
a. National Courts are the judicial arm of the State – and only the State has power, through its executive arm, to enforce judgments made by Courts and awards made by arbitrators against persons within its jurisdiction. (Note there are limited forms of self-help in the commercial context, including for example rights of set-off and to exercise liens and to settle accounts through a third party; and it is probably correct that in the great majority of commercial arbitrations, certainly those conducted under the auspices of arbitration institutions, awards are settled voluntarily so the need for enforcement does not arise.)
*Former member of the Court of Appeal for England and Wales, 1992-2000, and Chief Justice of the DIFC Courts, Dubai, 2005-2010. Justice of Appeal, Bermuda, 2003 to date. High Court Judge (Commercial Court) 1984-1992, and an international arbitration since 2000.