The Concept and Relevance of "Truth" in Dispute Resolution -- the Asian View - Chapter 3 - Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About? - ASA Special Series No. 35
Teresa Cheng SC, Senior Counsel; Vice President of ICC International Court of Arbitration; Vice President of International Council for Commercial Aribtration (ICCA); Vice Chair of Hong Kong International Arbitration Centre; Past President of the Chartered Institute of Arbitrators; Adjunct Professor of Hong Kong University and Hong Kong Polytechnic University.
Could the Truth be ascertained in international commercial arbitration?
Philosophers will examine the question by first ascertaining which theory of truths should be applied. The purpose of this chapter is not to discuss the various theories that may be used to define "truth". That will have to wait another day.
The pragmatists in the arbitration community will readily reply (realistically speaking) not always or, more accurately, never. There is no absolute truth in the context of contentious proceedings; there is only relative truth. This is not a result of any inherent deficiencies of arbitration but an objective reality of any modern legal system. One needs only review the legal dictionaries to appreciate the emphasis legal systems have placed on "truth". The extent to which the various learned editors have given an explanation to the three terms: evidence, fact and truth, is very revealing. The length and details devoted to the definition of truth is a fraction of that of evidence. Legal systems and judicial processes rely primarily on evidence adduced by the parties, and from that the facts either discerned directly from such evidence or deduced by a process of legal reasoning and logical analysis. The phraseology used is not to "find the truth" but to "find a fact". It accurately reflects the process that the arbitrators embark upon. The finding of fact does not always lead to the ascertainment of truths. But does it matter?
To answer this, one can perhaps start to reflect on the fundamental role of an arbitrator. The basic idea is that he is to serve the parties by providing an award deciding the disputes between the parties that have been submitted to him. He is to observe the rules of natural justice and abide by what the parties have agreed save where such agreement is in violation of the mandatory provisions of the relevant national procedural law and/or its public policy. Hence, if the parties want to get a resolution of the dispute as opposed to the finding of truth of what caused the dispute, the impossibility of ascertaining the truth may not matter; or put more accurately the absolute truth may not matter.
II. Arbitrators' Task and Parties' Desires
III. The Asian Perspective