14 Jun 2019
Distinguished arbitration scholar, lawyer and arbitrator, Professor Stavros Brekoulakis MCIArb, delivered the 2019 Roebuck Lecture to a packed house last night at 12 Bloomsbury Square. After a welcome to the assembly from CIArb Director General, Anthony Abrahams, Professor Brekoulakis spoke on the theme “The Unwavering Policy Favouring Arbitration under English Law.” In his speech he reviewed the development of arbitration practice in England over the last several centuries giving context to current debates on the legitimacy of arbitration and offering insight into the future of the practice, post-Brexit and beyond.
The theme was chosen as a tribute to Professor Derek Roebuck for whom the yearly event is named and who is the author of several histories of arbitration, including “Women in Disputes: A History of European Women in Mediation and Arbitration” and most recently “English Arbitration and Mediation in the Long Eighteenth Century,” co-written with Francis Boorman and Rhiannon Markless who were in attendance on Professor Roebuck’s behalf. Like Professor Roebuck, Professor Brekoulakis serves as the Editor in Chief of CIArb’s prestigious Journal.
History of Arbitration Civil Society
Professor Brekoulakis began by describing the use of arbitration over many centuries in England, especially among merchants and tradesmen and other areas of commerce. Arbitration in both business and community disputes developed prior to the courts and parliamentary government and was the historically preferred method of reaching resolutions. Arbitration remained in steady use in England throughout the creation of the courts of justice, the introduction of the Common Law, and the establishment of Parliament.
In the traditional form of arbitration parties did not use legal counsel. Arbitrators were invariably male and were usually chosen based on their status and their familiarity with the disputing parties. Prior knowledge of the parties and of the facts of the dispute was seen as a strength. The ability of the arbitrator to take this knowledge and find a compromise that allowed the losing party to save face was highly valued in the process. This is in stark contrast to the modern criticisms of arbitrators who “split the baby” in their decisions.
One key aspect of historic arbitration which persisted into recent centuries was the non-binding nature of agreements to arbitrate. Agreements to arbitrate could not be enforced. Parties were free to revoke their consent to arbitrate up until the issuance of the final award. The development of the English legal system and the presence of the courts saw the rise in the use of arbitration bonds as a solution to this issue. However, enforcement of an arbitration bond required a court proceeding in addition to the arbitration proceeding, leading to extra time and cost for the parties.
History of Arbitration in Parliament
Over time, two types of arbitration emerged in conjunction with the development of the English courts: submission and reference. In the first type, parties voluntarily submitted their disputes to arbitration, as had been the case traditionally. In the second, courts referred parties in disputes in litigation to be resolved in arbitration instead. But even with the increase in the integration of arbitration into the legal system, problems persisted. Time and costs were significantly increased when parties resisted court referral to arbitration. Submission arbitrations too were frustrated when parties would withdraw consent to arbitrate just prior to the issuance of the award.
This situation led John Locke to draft the first example of legislation on arbitration to appear in England. The Locke Act sought to increase the enforceability of arbitral awards while confirming the importance of arbitration in promoting trade. In 1968, the English Parliament passed a comprehensive arbitration act which introduced statutory arbitration to the English law. Now parties could not only agree to arbitrate their existing disputes, they could also agree to arbitrate any future disputes arising between them and be bound to this agreement. This solidified the rising trend of support for arbitration in the English Parliament which had existed since the 7th Century.
History of Arbitration and the Courts
The integration of arbitration into the Common Law took time to catch up to the Parliament’s full formal legislative adoption of arbitration. However, arbitration had existed as an option for parties in legal disputes since the time the Locke Act. Modern critics of arbitration exaggeratedly claim that arbitration developed as an alternative to the courts. However, from a historical analysis, it is evident that arbitration developed as an integrated and ancillary part of the English judicial system. In the mid-1700s, Lord Chief Justice Mansfield, one of the most influential judges in English history, was well known for regularly referring parties to arbitration in commercial disputes.
Professor Brekoulakis’ assessment in light of this historical overview is that the English courts have a tradition of viewing arbitration with “cautious trust.” The courts have held a traditional respect for party autonomy in choosing arbitration and their arbitrators. The arbitration system has also been viewed in a pragmatic light as assisting the English courts with growing caseloads with estimates of up to half a million disputes being filed in England each year. The courts’ caution for arbitration arose from the revocable nature of traditional arbitration. This was maintained on the legal basis that arbitrators acted as agents for the disputing parties and, under English law, all agency agreements must be freely revocable. This was the situation until the seminal case of Scott v. Avery.
Comparison with Other Jurisdictions
Professor Brekoulakis then drew a comparison between the integrative development of arbitration in the English legal system and the historic view of arbitration in France, the US, and Germany. After the French Revolution, arbitration was seen as an outright threat to the rule of law and the stability of the new French government. Napoleon was known to disfavour arbitration and restricted its use in drafting the Napoleonic Civil Code. This reflected a known desire in French civil society to eliminate arbitration. Up until the 20th Century in the United States, judges openly distrusted arbitrators and doubted their ability to administer justice. American judicial opinions contain strong wording stating that private arbitrators simply could not be trusted to interpret and apply the law and that this was a threat to rule of law. Similarly, during the rise of the National Socialist movement in Germany, the government there sought to curtail the use of arbitration. The accusation that arbitration was simply a strategy used by private individuals trying to circumvent the legitimate court system is reflective of criticisms still heard today.
Professor Brekoulakis noted that in light of this, it is apparent that a well established and stable parliamentary government, such as had existed for several centuries in England, has few objections and mistrusts of arbitration. It is instable, tenuous, and new governments that seem to distrust and act to undermine the use of arbitration.
The Current Discussion and Looking to the Future
Professor Brekoulakis’ examination of arbitration through history is important in the current debates over the legitimacy of arbitration. There is a current popular view that England has only had a policy of supporting arbitration since the rise of capitalism. This is, says Professor Brekoulakis, wholly unfounded. It presumes that arbitration is and always has been antagonistic to the courts. It also assumes that arbitration in England is a 20th Century development, which it is clearly not. Instead, arbitration has developed concurrently with the English courts as a supplement to the system.
Professor Brekoulakis concluded that recognition of arbitration’s historic and integrated status in the English legal system is important in the uncertainty surrounding the Brexit process and debates over arbitration’s use and legitimacy in general. The ability of arbitration to adapt, evolve, and provide resolution to parties’ disputes over the centuries is a cause for optimism.
Comments from the CIArb President and Closing by Professor Julian Lew QC
CIArb President, Tom Halket C.Arb, FCIArb, thanked Professor Brekoulakis for his lecture and commented that it provided a cause for optimism in light of the rise of distinctively modern disputes, such as domain name arbitration and blockchain contract arbitration. As arbitration has always adapted to provide solutions to business disputes, there is hope it will continue to do so in the technological era.
Professor Julian Lew QC of Queen Mary University of London, closed by thanking Professor Brekoulakis for his excellent presentation and noting that businesses such as banking, shipping, manufacturing and more have always come to England. The courts and legislature have always sought to understand the needs of commercial parties and will hopefully continue to do so by supporting the use of arbitration.
The event was followed by a drinks reception.
Photos from the Roebuck Lecture are available here.
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