The third age of arbitration - Ben Giaretta

The third age of arbitration - Ben Giaretta

 

The sociologist Richard Sennett has talked about the development of a craft through rhythm, adjacency and resistance. A craftsman learns through repetition and long years of practice (rhythm).  Then they acquire new skills from those nearby – from those physically close and from those practising a related trade (adjacency). Thirdly, they develop their craft through encountering new problems that they have to devise solutions to (resistance).

We have seen the craft of the arbitrator change over the years. I suggest there have been three broad phases, corresponding very roughly to the period before the year 2000, the years from 2000 to the present day, and from now into the future (please note this is merely an impressionistic sketch rather than a proper history). I call the arbitrators in these three phases the pioneers, the professionals and the problem-solvers.

 

The pioneers

 

In the beginning, arbitrators had to learn their craft, and build arbitration as they learned. The arbitrators helped to create the conceptual framework for arbitration and they acquired the skills they needed to operate within that framework. These were the days in which arbitration stepped out from the shadow of national court litigation to become an independent system of justice. At first arbitration relied heavily on the support of courts but over time that reliance diminished.

Individuals in this phase tended not to be focussed solely on sitting as arbitrator: they held positions at firms or universities and took appointments as a secondary profession. Or they reached the end of a successful career as counsel or judge or engineer or whatever, and they embarked on a second and final phase of their working life as arbitrator after their children were grown and their mortgages paid off. These were the pioneers.

 

The professionals

 

Something changed around the turn of the millennium. Now, there were more and more whose primary profession was as arbitrator. They may still have started out as something else – as counsel, usually – but they moved to arbitrating full-time at an earlier stage of their lives than before.

Several factors were at play here. The growth of the international law firms meant conflicts increasingly caused difficulties for those who were “double-hatting”; while improvements in technology meant it became easier for individuals to work independently outside of the support networks provided by law firms. They had also seen what the pioneers had done and they wanted to take this further.

It now became commonplace to talk about full-time arbitrators, just like full-time judges or counsel. Accompanying this was greater scrutiny of arbitrators, with the issuance of new guidelines on ethics and conflicts of interest like the codes regulating other trades. The arbitrator became professional.

 

The problem-solvers

 

Where next for the development of arbitrators? They must learn from resistance. New problems have emerged that they must confront. Not just the problems of the pandemic, although those are serious enough and may lead to profound changes in arbitration. There are also the long-standing problems of arbitration becoming more expensive and time-consuming, and less attractive to users; and greater awareness of arbitration’s contribution to the climate crisis. Now arbitrators must help find solutions to those problems.

Technology will play its part, changing the ways in which arbitration is delivered, and arbitrators must embrace this. Mindsets will also change. Approaches which served the pioneers and the professionals will become outdated. Process management and analysis of evidence might be left to the computer while the arbitrator will need to focus on dealing with the human factors that are beyond the capacities of the software. This might include considering what will really solve the dispute: the arbitrator might need to draw on the skills of a mediator to heal the rift between the parties. Or else, if that is not possible, the arbitrator may need to go beyond the answer generated by an algorithm, to work out what is truly in the best interests of justice.

Arbitration will adapt to the changing world. It is ready to do so. The path has been laid by the pioneers who created their craft and by the professionals who gave it maturity and independence. Now the problem-solvers must take it forward into the third age of arbitration.

 

 

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About the author:
Ben Giaretta, Partner at Fox Williams LLP, is an international arbitration lawyer with a wide range of experience across many different sectors.  He is a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, and is the current Chair of the London Branch of the Chartered Institute of Arbitrators. He is a member of the Consulting Editorial Board of Lexis PSL Arbitration.