First Published: November 15, 2018

Arbitration | There is life after the bench. This is the experience of many retired judges who are now arbitrators. The question that arises from appointing retired judges as arbitrators is whether they make good arbitrators. There are conflicting views on this subject. Those who say that retired judges make good arbitrators argue that:

1. Judges are used to resolving disputes between parties,
2. They have the necessary judicial temperament.
3. They have the benefits of legal training.
4. Their training enables them to analyse the facts and the law and apply the law to the facts.
5. They have the respect of the lawyers who appear before them.
6. Judges are used to writing judgments so they can easily write arbitral awards.

On the other hand, there are those who say that retired judges do not make good arbitrators. They argue that:

1. Arbitration should not be used as a judge`s retirement home.
2. Some judges have very little understanding of the difference between litigation and arbitration.
3. Most retired judges have no training in arbitration.
4. Retired judges tend to convert arbitration to private litigation.
5. The arbitral proceedings tend to become formalised.
6. They lack the “soft skills” required in arbitration.
7. A number of arbitral awards by retired judges have been set aside by either the High Court or the Supreme Court.
8. Retired judges do not have experience in arbitration.

Asked about the standing of Retired Supreme Court Judges as arbitrators, Hiroo Advani, one of the few leading Indian figures in International Arbitration circles commented that:

“They are the worst kind of arbitrators as they treat all arbitration cases as regular judicial cases”1

Robert D Weisman and J David Campbell suggest the following list of questions may help in deciding whether or not to appoint a retired judge as an arbitrator.

1. Will selecting a retired judge create a more structured and formal process?

2. Will the retired judge be able to adjust to the less powerful role of an arbitrator?

3. Is the nature of the prior judicial experience conducive to resolving the immediate dispute?

4. Does the retired judge’s political background impact his or her decision-making process?

5. Is the retired judge willing to facilitate compromise?

6. Does the arbitration proceeding involve procedural requirements that would be better addressed by someone with judicial experience?

7. Does the retired judge have the particular skill, traits or characteristics that can best serve the parties in the dispute?

What of the appointment of professionals as arbitrators?

Vis-à-vis the appointment of professionals as arbitrators, Margaret L Moses writes that:

“The highest concern is that professionals are too focused on doctrine and do not have sufficient practical experience to make wise decisions. Particularly in fact-intensive cases, such as construction arbitrations, there is concern that professors will be too theoretical, will not focus on the facts, and may not have the skill set to deal with the complex factual issues. On the other hand, professors may be very effective if they are knowledgeable about arbitration, about the law in question, and about the pertinent industry. There seems to be a consensus that if professors are also involved in practice, that experience, along with an intellectual level that is generally high, can make them valuable members of a tribunal.”3

The learned author quotes two interviews, one with Sylvester Pieckowski, a Polish arbitrator and counsel who in April 2007 told of a tribunal in which all three arbitrators were professors.

He said;

“The dispute concerned an argument to distribute Vodka in the US. None of the professors had experience in arbitration or in the Vodka business. They grossly misapplied the law, and rendered a very bad award, which was ultimately vacated.”4

The other interview quoted by the learned author was an April 2007 interview with Chris Seppala, a frequent counsel in international arbitration and an arbitrator in Paris who remarked that:

“Professors can be excellent if they have had a lot of practical experience, for example as legal practitioners. Otherwise, they can be dangerous as they may lack the necessary familiarity with the business world as well as experience in dealing with facts intensive litigation(arbitration).”5

Davison Kanokanga SC AA ARB CIArb BL LLB (UZ)

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