Philosophy Can Help Tribunals Draft Awards that Parties will Accept as Legitimate - Chapter 23 - ICDR Handbook on International Arbitration Practice - Second Edition
Originally from the ICDR Handbook on International Arbitration Practice - Second Edition
Immanuel Kant (Germany, 1724-1804), one of the greatest philosophers of all time, was the first to apply philosophy to the idea of astronomer Nicolas Copernic (also known as Copernicus) that the earth is not the center of the universe (as believed in those times), but rather that the center is the sun and the earth moves around it. This concept entirely changed the vision of thinking : the center of the human world was no longer the egocentric “I” or “Me” but rather my relation to “You.”
As a consequence, people are to be treated not as a means, but as an end. For Kant, we treat people as an end whenever our actions toward them reflect their inherent value. This is mirrored nowadays in the ideas that the economic and the business world cannot survive without ethics and that the survival of capitalism and liberalism is subject to the condition that the human being is not forgotten.
For Kant, society comes to hold the view that the faculty of sound judgment requires the agreement of all as a sort of duty. Jürgen Habermas, another renowned philosopher (Germany, born June 18, 1929), followed that way of thinking when he proposed a solution to a dispute is legitimate if and only if those concerned with the dispute are in agreement with the way the agreement is worded and communicated to them.
Thus, when we are called to function as a judge or arbitrator, how can we ensure that, first, the human being is taken into consideration and, second, that the persons or entities concerned by the dispute agree with agree with the solution adopted and, therefore, make it “legitimate”?
The general answer resides in using arbitral procedures that are precisely aimed at protecting the parties’ rights of due process, including the right to a fair hearing and to be heard, which are the two milestones of a valid and enforceable international award.