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Jan Advocate 2017

48 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE jurisprudence on leave applications and appeals from arbitral awards cited above. Although a losing party in either litigation or arbitration may always wish it had another chance to change the result, there is no assurance that the substituted decision of the court will be “better” than the original award from any objective standpoint. If one did actually believe that the substituted decision of judges assigned by the courts is likely to be better, one should have the entire dispute resolved in the court system so as to avoid the added complications, costs and delay that arise from any interrelationship between the two systems.53 • Judicial Resources. One of the societal benefits of arbitration is the lessening of the burden on publicly financed courts so that they can deal with issues that affect the public more broadly than individual commercial disputes. • Development of the Law. The courts have an important role in serving the public at large, in part through the development of the law. Arbitrators are appointed only to serve the parties by resolving their dispute. The law, as perceived by the arbitrators whom the parties have chosen to entrust with the resolution of their dispute, is a tool in that process. Particularly in business disputes, parties should not be prevented from choosing dispute resolution processes (be it mediation, arbitration, med/arb or neutral evaluation) that they find more efficient and effective because the public interest would be better served by the development of the law.54 In arbitration, the parties have the ability to choose a tribunal comprised of members whose judgment they trust on both issues of fact and law. That is where the real choice in arbitration lies. There is no reason to believe that a loser in court is any more satisfied with the fairness or correctness of the decision than a loser in arbitration. Nor is there any reason to believe that the substituted decision will necessarily be more fair or correct, as the Sattva decision dramatically illustrates. • User Expectations. It is sometimes difficult to differentiate between the expectations of users and the preferences of the lawyers to whom they entrust the resolution of their disputes. The elimination of rights of appeal will give users a clearer choice and require lawyers to better explain the differences between two clearly delineated alternatives to their clients. In turn, that will allow the parties to make a more meaningful choice. At the moment, consumers of dispute resolution services often do not have a clear choice to have an appeal-free process, or to make the selection of an arbitral tribunal with that difference in mind. When the benefits of arbitration are swamped by the appeal process,


Jan Advocate 2017
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