Originally from Search for Truth in Arbitration: Is Finding the Truth What Dispute Resolution Is About? - ASA Special Series No. 35

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When I realised that I was speaker No. 18 due to start at just before 1700 on a Friday afternoon on the topic of "Formalism in Arbitral Proceedings--Good or Evil", it occurred to me that the greatest kindness that I could render the Association, in return for its kindness in inviting me, was to regard the question itself as a formality; say that the answer is "Evil" and then sit down.

I say that because the title of this section seems to invite that response. Had the title been "Sin in Arbitral Proceedings--Good or Evil" it could scarcely have produced a more resounding answer in favour of the second alternative. To make matters even clearer, practically any definition you care to choose of formalism--such as undue insistence on doing things in a prescribed way at the expense of efficiency or justice--both defines the subject and dictates the answer.

Open any book or article on arbitration and you will find a sometimes wearisome set of references to the fact that one of its many advantages is, as it will sometimes be put, that it avoids the heavy formalism of State courts, or something referred to as conveyor belt justice. I feel bound to say that I find this form of characterisation of national courts, or at least the one in which I sit, as somewhat inapposite. I am not conscious that what I do from Monday to Friday bears any real resemblance to the operation of a conveyor belt, other than that it never stops; nor do I see myself as a mechanic whose function is to service one case after another according to the rules in the manual. If only it were so simple.

We all know, however, that what is meant in this context is that State courts, for reasons connected with their function and sometimes history, must to a greater or lesser extent follow rules of procedure laid down by national laws applicable in all or most cases. Arbitrations, being the product of the agreement of the parties, may, within limits, adopt a more flexible procedure.