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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 45 It might be observed that it is an odd sort of certainty that can only be achieved at the end of a process lasting multiple years and involving multiple levels of appeal and several jurists, likely with contrasting views—a process that has to be repeated every time a question of contract interpretation arises. It might fairly be asked, what is the value of a form of “certainty” that has no existence apart from the expensive and time-consuming process by which it is revealed—on a case-by-case basis—only when the case finally rolls to a halt? THE IDEA OF ARBITRATION AND THE EFFECT OF APPEALS TO THE COURT A distinctive feature of arbitration is that it provides an alternative to resolution of a dispute by the courts. This basic conception of arbitration exists in both civil law and common law contexts and is of long standing. In ancient Greece, Demosthenes wrote: If any parties are in dispute concerning private contracts, and wish to choose any arbitrator, it shall be lawful for them to choose whomever they wish. But when they have chosen by mutual agreement, they shall abide by his decisions and shall not transfer the same charges from him to another court, but the judgments of the arbitrator shall be final.50 In more recent times, Lord Mustill in the Privy Council in 1995 said: Arbitration is a contractual method of resolving disputes. By their contract the parties agree to entrust the differences between them to the decision of an arbitrator or panel of arbitrators, to the exclusion of the Courts, and they bind themselves to accept that decision, once made, whether or not they think it right.51 Each of the following well-established reasons for why parties choose arbitration as an alternative to court litigation is compromised by an appeal from an arbitration award to the courts: • Choice of Decision Maker. Professor Jan Paulsson, the renowned international arbitrator, stated: “The idea of arbitration is that of binding resolution of disputes accepted with serenity by those who bear its consequences because of their special trust in chosen decision makers.”52 An appeal substitutes the decision of a judge or judges assigned by the court for that of the chosen decision makers. The parties are free to choose decision makers who are as well or better qualified in relation to the facts and/or the law specific to the dispute than many or most judges. Or they are free to choose other decision makers if those qualities are not important to them.


Jan Advocate 2017
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