The Gazette 1972

choice of forum in which to litigate, since it is the law of the forum which governs procedure. In a recent case, for example, the House of Lords held that although the proper law of a contract was English law, nevertheless because the arbitration was held in Scotland a party had no right to apply to the court for a case stated, since the procedure is also unknown under Scottish law. In addition the courts of different jurisdictions may arrive at different results as to what is the proper law of a contract. The attitude of the English courts that a statement by the parties of the proper law in their contract is binding is not followed by some other systems. A party therefore may be in a position to initiate proceedings in several jurisdictions, and his adviser's choice may be decisive for the success or failure of his client's case in arbitration, or claim to set aside an arbitration award. To help with these problems there are several useful publications by the International Chamber of Commerce (28 Cours Albert ler Paris VIII). For example, the Rules of Conciliation and Arbitration, Commercial Arbitration and the Law throughout the World and Commercial Agency-Guide for the Drawing up of Contracts. Minimum employment of counsel urged A solicitor in Dublin, now unfortunately no longer with us, was an outstanding practitioner but knew his own limitations, and if a case appeared to have anything whatsoever to do with the law he used to pronounce that it "reeked of law" and despatch it straight down to the Bar Library. An Irish solicitor may find himself sitting around a table with a valuable foreign client who is waiting for a reply to a question about Irish law, with the Bar Library very far away indeed. Irish solicitors also will have to compete with large firms of solicitors in England (often with branches abroad) who give a very full service with the minimum employment of counsel. This is part of a much wider problem, but one on which the profession might well commission a very full research project. The Bar, of course, realises that as such it will have no future if there is fusion, but solicitors should surely consider what their future as a learned profession will be if the present system continues unaltered. A fairly obvious conclusion is that to advise on dis- pute". with an international element will require a good knowledge of the national law and above all of the basic principles of procedure and jurisprudence which will make it possible to understand other systems and to co-operate fruitfully with colleagues in other coun- tries; that the Common Market is going to bring with it demanding but extremely interesting work; and that it is for our educational authorities to ensure that Irish solicitors are properly equipped to obtain a share of this new work, and are able to cope with the share they obtain.

Arbitration in international contracts Some of these problems may be illustrated in relation to arbitration, which is particularly important because of the established practice of including provision for arbitration in commercial contracts with an internati- onal element. Increasingly the provision is for arbi- tration under the rules of an international body such as the International Chamber of Commerce. An inexperienced practitioner may rashly assume that arbitration is arbitration—that whatever the legal sys- tem which governs, the activity is much the same. In fact Anglo-Irish and continental arbitration differ fundamentally. Under the Anglo-Irish system an arbitrator must of course state a case on any question of law for decision oy the courts, when required to do so by either party. As a result arbitrators are not free to concoct their own legal system. Against this a prudent arbitrator does not give reasons for his award, because his award once made cannot be set aside unless he shows an error on fhe face of the award. On the continent there is no such thing as a case stated, but the arbitrator gives reasons for his award, and under German law, for example, an award may be set aside if reasons are not given or are not "logical, clear and easily understand- able". Differences id arbitration procedure The procedure is also quite different. In Ireland and England the ridiculous practice is entrenched of treating an arbitration as a miniature or informal court action, and most of the proceedings are conducted orally before the arbitrator. On the continent the arguments and e vidence must generally be stated in writing and there will only be a short, if any, hearing. At its worst this nas been called justice by pen pushing, but it has very many advantages over our "system". An Irish lawyer involved in a foreign arbitration must therefore be pre- pared to state his client's case at length in writing and to support it by written evidence. He is unlikely to help ms client by writing the necessary documents in plead- ln g language, particularly if his pleading is of the a ppalling standard accepted by the Bar in this country. In addition under the procedural law of most coun- ties the questioning is - mainly carried out by the judge 0 r arbitrator. Cross-examination is neither permitted n o r , indeed, understood by continental judges or arbi- trators, or the litigants themselves. . In advising on the inclusion of an arbitration clause m a contract, or on whether to compromise or fight, an adviser will have to keep these differences very much m mind. Questions of jurisdiction to be considered One of the other results of differences in local law a nd practice is that the lawyer may have to consider Ver Y difficult questions of jurisdiction, and manoeuvre accordingly. Not only the law which governs the parti- c ular legal transaction may be relevant but also the

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