The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND

Vol. 76. No. 7

September 1982

Don't Litigate — Arbitrate

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! •