THE RULES of international arbitration have been viewed sceptically by the East for many years as protection for Western business interests, the president of the Indian Bar Association Fali Nariman, said in a recent address.
Nariman, speaking at the Clayton Utz/Sydney University International Arbitration lecture on September 11 on the topic ‘East meets west, tradition, globalisation and the future of arbitration’, said historically there had been a culture of distrust in the developing and under-developed world at the international arbitration system. He said that even some countries, such as Egypt, that received favourable outcomes from arbitration processes didn’t trust the system.
In his 50-minute speech, Nariman also said there is an increasing awareness in the commercial world that lawyering is not the most ideal method of dispute resolution. “Excessive judicialisation of the arbitration process causes bottlenecks and delays,” he said.
Nariman told the audience that in the conscience of every arbitrator, there is a mediator or conciliator who is asleep — and the cultural problem is how to wake them up. He suggested the most obvious way to achieve this would be to draft suitably wide dispute resolution clauses. He said in Australia, however, there have been comments made, most notably by Sir Laurence Street, that alternative dispute resolution should not be understood as arbitration. “So, if in the conscience of any international arbitrator in this country there lurks a mediator or a conciliator who is asleep, let us not awaken him,” he said.
Calling upon Eastern teachings, Nariman concluded his speech by reciting five principles from the teachings of Buddha, designed for observation by wise rulers while resolving disputes between subjects.
First, examine the truthfulness of the facts presented; second, ascertain they fall within jurisdiction; third, enter the mind of the parties so the judgment to be rendered is just; fourth, pronounce the verdict with kindness and finally, judge with sympathy, Nariman explained.
“International arbitrators whether they hail from the East or from the West — whether their cultural background is from the First World or the Third World — cannot possibly go wrong if they follow these five simple principles laid down more than two thousand year ago,” he said.