In episode 2 I highlighted the legal principles that come into play in commodity trade + shipping arbitrations. The issue here is how to bring arbitrators, whose specialism is the Trade + not the Law, into knowledge + familiarity with legal terms and arguments that are “second nature” to the Lawyers, often called upon to make the arguments for the parties.
The responsibility lies with the Two Groups. First, the Trade Associations have to provide education to the arbitrators in the law, legal principles + legal arguments. Without this training + education, the arbitrators will struggle when confronted with the legal arguments in an arbitration. The purpose of the Trade Association training is not to turn the arbitrators into experts in the Law. Traders + administrators remain what they are – Traders + Administrators. That is why they are selected for appointment as arbitrators – they have knowledge and expertise of the Trade. But they need to acquire an understanding of the legal principles so that they can make decisions on the legal issues during the arbitration.
The Second Group are the Lawyers who while, often, engaging with lawyers representing the other party, are also engaging with the arbitrators – Two Different Audiences with Two Different Sets of Skill and Knowledge in the Same Reference. So, the lawyers making submissions have to perform a balancing act. In one and the same submission, Talk Law to the legal opponent and Talk Trade to the Arbitrators. Too often, the lawyers see one audience when there are two. So, the Lawyers need to think, reflect and draft their submissions with the arbitrators uppermost in their mind and not just the lawyers.
This is not as easy as it reads. We are all in the grip of our working norms and making a significant change is not easy – in any walk of life. But the change has to be made.
NEXT EPISODE MONDAY 23 AUGUST 2021
“GETTING THE BALANCE RIGHT”