Author: Pierre Lalive*
Published: December 1992
Responsibility of Arbitrators
Description: Having been asked to express some thoughts of a general nature, based on personal experience, I feel I can hardly select a better and more fitting topic — in a tribute to a colleague and friend who is as well-known an arbitrator and comparatist as Professor Hans Smit — than that of the difficulties of communication which arise in many international arbitrations between arbitrators, on the one hand, and counsel on the other.
It deals with a practical aspect which some practitioners may well view, erroneously it is submitted, as narrow or as of secondary importance, i.e., that of communications between persons of different backgrounds and nationalities, and it illustrates the often underestimated importance of what may be described for short as the “comparative approach” to international arbitration.
Every practitioner knows or should know the old saying “an arbitration is worth what the arbitrator is worth.” It does express a truth or, rather, part of the truth and it should in fact be extended so as to include the attorneys and the parties, not to mention the arbitration institution if one happens to be involved in a particular case. While many aspects of arbitration are controversial, surely there should be general agreement at least on the following, rather trite, observation: in order to be a successful method of dispute resolution, arbitration must ex natura rerum involve a regular flow and satisfactory degree of communication between arbitrator and counsel for the parties, in order to keep to a minimum the number of misunderstandings which are bound to happen in any human group involving the interchange of ideas. These misunderstandings are inevitably more frequent, as well as more profound, when the group under consideration is heterogeneous, as is necessarily the case in international arbitrations.
One fact should be emphasized at the outset: contrary to a widespread belief that appears to exist among businessmen and practicing lawyers — in particular but not only in the United States — international arbitration is a “different animal” and is not merely, but far from, a kind of extension or variation of domestic arbitration, ADR or other “national” methods of dispute resolution. This rather elementary truth is so often lost sight of or neglected that it cannot be repeated often enough.
True it is that there are various degrees of that “international” character and that, on certain exceptional occasions, an “international” arbitration is capable of being handled as if it were a domestic one. The fact remains, however, that, as a rule, international arbitration has a distinct and specific nature, not only, or not mainly on a juridical level (because it often gives rise to problems of Private International Law) but on a sociological and psychological level, because it so frequently involves much more than mere conflicts of interests, economic or legal.
*Professor of Law, Geneva University; Attorney; Member of the Institut de Droit International.