PROMOTING DIVERSITY TO EFFICIENTLY MANAGE ARBITRATION
The choice of arbitrators conducting proceedings is probably the fundamental aspect parties take into account in dispute resolution by arbitration. The skills, abilities, experience, professionalism, wisdom, intelligence and training of the arbitrators have a significant impact on the quality of the entire process, the efficient conduct of the proceedings and on the making of the award.
The problem of how to achieve a proper balance between an efficient arbitration process and a comprehensive, sound and lawful award is an example of a dilemma long recognised by the arbitration community, as the best may become the enemy of good. Too much emphasis on efficiency can result in denying due process, while too much formality and inflexible procedures sometimes associated with due process can reduce efficiency. However, achieving efficiency without sacrificing due process and finding equilibrium should be possible with care and adroitness.
The constitution of the arbitral tribunal requires both art and legal science. ‘The process is no better than the arbitrators’ is already a proverbial saying in arbitration, so the issue of the arbitral tribunal composition is being discussed more than ever. According to the American Bar Association: “a diverse legal profession is more just, productive and intelligent because diversity, both cognitive and cultural, often leads to better questions, analyses, solutions and processes”.
Due to continued geographic expansion eastwards and southwards, in the last decade the use of international arbitration increased and became the preferred method of solving disputes, especially for international trade, business and investment. Given its international nature and global extent, there is an indisputable and legitimate need for diverse arbitrators with different perspectives, skills, experiences and backgrounds.
Jul-Sep 2017 issue
Spiru Haret University