Can You Teach Discretion?

Can You Teach Discretion?

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

21 February 2021

An interesting contradiction exists between the exercise of discretion on the one hand AND the need for Tribunal consistency on the other hand.

Discretion means you are free to make up your own mind. There are constraints. You need to be fair + reasonable + objective which are the same qualities you need to be a good arbitrator. But it is your decision whether, for example, to accept a late claim.

There are always two schools of thought – the first says the Rules are the Rules and if you break them then no discretion. The other says maybe – maybe there are reasons to make an exception.

Consistency is necessary to give parties confidence in the reliability of the process. One Tribunal needs to be consistent with the next Tribunal. More on this issue on 23 February.

Tomorrow’s (22 February) Comment For The Day will be on Mediation.

Episode

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