Originally from World Arbitration And Mediation Review (WAMR)

The theme of this year’s workshop, borrowing from a theatrical expression, is the final curtain in the arbitration, that is, the closing stages—the deliberations, the award, and the enforcement of that award. I chose my topic with the idea that it would be consistent with the theme of this year’s program, to complement it, but at the same time not to duplicate it. So, the topic I have chosen is the quality of arbitral decision-making and justification. It is not a topic that is discussed at every international arbitration forum, and I am hoping it will make a modest contribution to our discipline.

Let me begin with what many might consider an unusual statement, at least for international arbitration today. This is advice that Lord Mansfield is supposed to have given to the judges of the King’s Court Bench about 200 years ago, and here is what he said: “Consider what justice requires and decide accordingly, but never give reasons, for your judgment will probably be right, but your reasons will certainly be wrong.” Please note the distinction he is making between the decision and the justification of that decision because that is  part of the theme of my topic, and I will return to that point a little later.

I want to be clear at the beginning about what I am not addressing today. Gary Born, in one of his books, said that the requirement for a reasoned award is not the same as a requirement for a well-reasoned award. What I am not discussing today are the minimal requirements for what constitutes a reasoned award. Other people have addressed that issue many times, and I won’t repeat those discussions. I am much more intrigued by that second concept: what constitutes a wellreasoned award. I would suggest that it is not a matter of formalisms; it is not a matter simply of whether the award is drafted in the form of logical syllogisms, or for that matter in any particular form. I believe it is deeper than that, and it is in trying to understand that concept that my research and thinking has taken me in this direction. So, let me begin with the premises for this presentation, which may be surprising to some.