Jan Paulsson, The Idea of Arbitration, Oxford: Oxford University Press, 2013, 336 pp, hb £70.00, pb £29.99.
| DOI | http://doi.org/10.1111/1468-2230.12139 |
| Date | 01 September 2015 |
| Published date | 01 September 2015 |
REVIEWS
Jan Paulsson,The Idea of Arbitration, Oxford: Oxford University Press, 2013,
336 pp, hb £70.00, pb £29.99.
There is no shortage of books on arbitration. Barely a week seems to pass
without the publication of a text dedicated to arbitral practice in its various forms
– investment or commercial, international or domestic, institutional or ad hoc,
under the rules of the ICC, LCIA, or other institutions. Jan Paulsson’s The Idea
of Arbitration is a different kind of book. It describes itself as ‘foundational’, and
sets out a liberal manifesto in justification of arbitration-as-freedom (vii). But it
is no starry-eyed homage to arbitration – Paulsson points out that since there is
often no realistic alternative to international arbitration in cross-border disputes,
we cannot assume that arbitrants are content, or that the system is as it should be.
In fact, he explicitly accepts that the ‘nobler objective’ is better courts, in which
all can receive individualised (and swift, affordable, and non-corrupt) justice (24).
In the meantime, we must do the best with what we have.
The work begins with a section titled ‘Fundamental Speculations’ dealing
with the nature of arbitration, and what parties seek in arbitrators. Helpfully, the
first substantive sentence of the book explains Paulsson’s idea of arbitration: ‘that
of binding resolution of disputes accepted with serenity by those who bear its
consequence because of their special trust in chosen decision-makers’ (1). Of
course, some parties in some jurisdictions will be lucky enough to have such trust
in the judges of their local courts, but ‘public justice tends to be distant and
impersonal’, and the ideal of arbitration is ‘freedom reconciled with law’ (1).
Paulsson’s idea of arbitration is something different from the simple applica-
tion of the same law in the same way by a different person – an arbitrator rather
than a judge. At least part of the basis for this is that the idealised arbitrator should
deal with the individuality of a particular dispute. He writes that an idealised
arbitrator has commitment, capability, concern for the arbitrants, attentiveness
to the consequences of a decision, and condignity – a just perception of
the appropriate consequences of given conduct (7–9). One might say that the
attributes of an idealised arbitrator are those of an idealised judge, with the
exception that the arbitrator is not burdened with the wider implications of their
decision, in that they do not create binding precedent.
One significant feature of modern arbitration is that there is (generally) no
appeal from the arbitrator’s decision on the facts or the law. Where the right to
challenge for error of law under section 69 of the Arbitration Act 1996 is
excluded (as it very often is, for example by the adoption of the ICC Rules), an
arbitrator can get the law monumentally wrong. An arbitrator may conclude that
no English contract may be formed except in writing, determine a case on that
basis (denying redress to the wronged party or ordering the innocent party to pay
potentially vast sums). The arbitrant has no redress. Paulsson notes realistically
that the mandate of an arbitrator to decide a dispute by applying a particular body
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(5) MLR 883–911
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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