The Three Musketeers and the Arbitrator's Job

Prof. William “Rusty” Park has published an article in the September 2011 issue of the Journal of International Dispute Settlement titled “Arbitration in Autumn.”  Although the meat of the article is analyses of the French case Caribbean Niquel v. Overseas Mining and the American case Stolt-Nielsen v. AnimalFeeds, the bookends of the article are cautions that only an arbitrator of Prof. Park’s experience could offer.

I was taught that  the chief duty of an arbitrator is to render an enforceable award.  Put crudely, that’s the product the parties have agreed to buy: a binding and final resolution to the dispute that obviates entirely the need to enter a judicial forum.  Rusty Park reminds us that an enforceable award is a necessary but not sufficient expectation from an arbitrator.

Park articulates thee arbitral “duties”: Accuracy, Fairness and Efficiency.  He calls them the “Three Musketeers of arbitral duty” because they interact so subtly in mutual assistance.

First, an award must be accurate.  It should reflect and arise from the bargain at issue and be based upon what actually happened betwen the parties, to the extent it is knowable.  Application of the law to these facts should be correct.  There should be no mistakes.

Second, the arbitrator must conduct the proceeding with procedural fairness.  Parties must be heard.  Arbitral jurisdiction must be respected.  Impartiality and independence must both prevail and be seen as prevailing.

Third, the arbitrator must ensure that justice is administered without undue cost and delay.  The proceeding should be efficiently and rationally conducted.

Enforceability, Park says, is the Fourth Musketeer, D’Artagnan.  Park considers it “an additional duty” but he sees it as a kind of negative effort: That is, to “avoid giving cause for annulment or non-recognition of the award by reviewing authorities.”

I found Park’s reminder to be timely (for me, in a difficult arbitration now pending) and profound.  The Three Musketeers of arbitral duty should be revisited periodically, just to make sure we all remember what it is we’re on about.

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