The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND

Vol. 76. No. 7

September 1982

Don't Litigate — Arbitrate

T HE President of the High Court, Mr. Justice Finlay, recently added his name to the list of leadingmembers of the legal profession andjudiciary in many countries who have called for an increased use of arbitration in the resolution of disputes. His remarks were made at the launching of the Irish Branch of the Institute of Arbitrators. A few weeks later, Chief Justice Burger of the United States Supreme Court, addressing the American Bar Association, criticised the neglect of the use of private binding arbitration and urged the advantages of private arbitration, particularly for large and complex commercial disputes. Each of the distinguished jurists is faced with a serious problem ofbacklog in Court lists. Even by the use of drachonian methods, such backlogs are notoriously difficult to clear. The mere existence of a two- or three-year wait for a trial, of itself, lessens the chance of justice being done. Even if the economic pressures on the parties are not noteably uneven (which is rarely the case), the passage of time dims memories and renders the absence of key witnesses more likely. There are two major areas in which arbitration may seem to be of particular relevance — in the complex commercial disputes referred to by the US Chief Justice and, at the other end of the scale, in the resolution of minor disputes, particularly of consumer claims. The case for arbitration under Codes of Conduct established by trade associations has already been argued in these pages. Between 1974 and 1980, 19 Codes of Practice of Trade Associations were launched in Britain, ofwhich 13 provided for arbitra- tion in the event of the failure of the conciliation procedures normally established by such codes of practice. In the US, the activities of the American Arbitration Association include among its community dispute services the resolution of Landlord & Tenant conflicts, as well as ordinary consumer claims.

While the case for the State providing a system of Courts as a forum for the ordinarv citizen to obtain redress against other citizens of the State is unarguable, it is less clear that this obligation should extend to the provision, virtually without charge to the parties, of a forum for the resolution of disputes between commercial organisations. Although the spread of arbitration clauses in commercial contracts and other agreements is a welcome development, its progress is still far too slow. The advantages of arbitration procedures include the ability to select the arbitrator, thus taking into account the special experience and knowledge required for the determination of the particular dispute, the ability of the arbitrator to conduct proceedings in private, thus protecting commercial organisations from adverse publicity or loss of confidentiality and the ability of the arbitrator to impose particular procedures most suitable for the resolution of a given dispute. One of the stipulations which Mr. Justice Finlay made, in welcoming the extension of the number of cases going to arbitration, was that there should be an expertise and special qualification in the arbitrators employed. To that end, the launch of the Irish Branch of the Institute of Arbitrators and the promotion by it of seminars for prospective arbitrators is to be welcomed. Members of the profession are increasingly likely to be asked to act as arbitrators in the resolution ofdisputes and are urged to take advantage of training courses where possible and, when suitably qualified, to apply for membership of the Institute. While it is a matter of some pride that a member of our profession, Max Abrahamson, has gained an international reputation in the field of arbitration, particularly in relation to civil engineering contracts, it cannot be said that his achievements have spurred his colleagues in the profession to follow his star, even at a more pedestrian level! •