Following The New Lawyer's report about the loss of faith in arbitration in the United States, and Australian general counsel gives his views. David Fairlie, general counsel, writes a letter to the Editor.
I have belatedly read the article in The New Lawyer on negative attitudes to arbitration from in-house counsel in the US.
Can I offer a different perspective as an Australian General Counsel. Whilst I have only been in the role a short time, prior to then I was a dispute resolution partner in a major Australian law firm and have been, and, in fact, still am closely associated with the Australian Centre for International Commercial Arbitration.
For in-house counsel, the key is not to lose control of the process, either to external counsel or to the arbitral tribunal.
Thus you have a common objective with your opposing counsel, to select the most efficient arbitrator(s) from recognised arbitral panels and to select the most appropriate set of Arbitration Rules. If the dispute has only one issue or there is a relatively small amount in dispute, for example, then a fast track procedure, such as that provided in the ACICA Expedited Rules, is appropriate.
I, too, have heard the arbitration horror stories, like those described in the article - usually involving domestic arbitration and not international arbitration. But when you drill down it is often the case that those counsel complaining about excessive costs and delays, have had little prior involvement in the matter - in the selection of arbitrators with a demonstrable record of speedy resolution, and appropriate Rules which facilitate this end.
Also, the recently announced amendments to the International Arbitration Act, and the redrafting of the state Commercial Arbitration Acts to apply the UNCITRAL Model Law to domestic arbitration, will enhance the process of reform in Australia.
Competitive Foods Australia Pty Limited.