Duality

An arbitrator, as a private individual chosen by persons in disagreement or indeed in dispute, is more than a conciliator or a mediator. Arbitrators are chosen in preference to the State courts for a variety of reasons, which account for the differences seen in the nature and application of arbitration. The trust placed in an arbitrator goes hand in hand with the independence expected of him. As he is a judge (I)-but a judge with a difference (II)-our reflections on the requirement of independence placed upon him will proceed along two paths.

I. The independence of a judge...

Independence?

Independence? Seldom has a concept been charged with so many aspirations, and at the same time so many ambiguities. First of all, because it borders on or overlaps and competes with many others, equally problematic. The history of civilization testifies to its importance, in political terms, with the rise and fall of empires and the whims of power and sovereignty. So much so that decolonization saw the emergence of independence within interdependence. And if this makes definitions even more perilous, it is because everything doubtless rests on the ambiguities of dependency. What exactly is a dependent person?

A number of other lines of reflection can be discerned. We can look to sovereign powers-territorial or otherwise, public or private-and even go as far as the individual, albeit with the proviso, long after Spinoza, that 'man is not an empire within an empire'. Master or slave of himself, it is by the use of freedom that man binds himself through a contract, be it social or otherwise. He is all the more inclined to do so as his inmost nature reveals a certain malaise vis-à-vis freedom and its use on an affective level. Each one of us has his Grand Inquisitor, who cannot be banished by emblazoning a wall with the word 'Freedom'. For freedom and permissiveness are distinct notions, even if one helps explain the other, as order and disorder, public and private, public policy and private policy. And, as if such interaction were not enough, the needs of identity, both national and individual, add to the complexity of the problem. Identity-or the feeling underlying it-is the prime requirement for independence of mind. [Page101:]

Status and role

Independence of mind cannot be measured without giving regard to each person's situation, particularly in the fulfilment of a social function. The distinction between status and role cherished by sociologists makes this quite clear, for it enables us to see that the place assigned to each person in the material or legal order does not necessarily match-far from it-the behaviour adopted by that person in reality, whether he acts beyond or-as is far more often the case-below his status. Analysing this difference-its extent and its causes-clarifies, amongst other things, expressions of independence. When it comes to arbitrators, our first thought is to apply the dialectic of function and organ.

Sacred and profane

The task of judging others is something quite unbelievable. It transcends the ordinary activities of people within society. The retort one is tempted to give to judges who dispense justice is that if they are dispensing it, then this is because they have appropriated it. But from whom? That it is said to be of divine origin or a last judgment, that is to say without appeal, comes as no surprise. Nor are we surprised by the historical mission of the judges of Israel and the judges of Ancient Greece, who were chosen by drawing lots, in other words by fate. In similar vein, basilicas were originally courts. What was meant then by the independence of judges? The position of an arbitrator is quite different. If he dispenses justice to private individuals, it is because they have entrusted him with the job of pronouncing over them. The arbitrator's function is nonetheless perceived in a similar setting.

The sacred nature of the job done by State judges has changed during the course of history, without however disappearing. The legitimacy of the absolute monarchy went hand in hand with the coronation oath, whereby kings undertook to fight for justice. Having met with defeat in Egypt, the first time that he went on a crusade, Saint Louis attributed his defeat largely to the lack of justice within his kingdom, which led to a long and impressive series of royal ordinances for its reform in medieval France.

Judges and modernity

With the passage of time came a profound transformation. In terms of political philosophy, modernity has led to the secularization of justice and to the affirmation of a sovereign people in whose name it was rendered. This in turn brought a new analysis of a judge's function. The Enlightenment, under the decisive influence of Montesquieu, exalted the separation of powers. But this engendered a lasting confusion in people's minds between separation and independence of powers. Separation does not imply an absence of hierarchy, and even less arbitrariness in the courts. When stripped of democratic legitimacy, the judiciary is not and should not be independent, inasmuch as it is and must remain the servant of the law.

Necessary distinctions

But what is the situation regarding the executive power, in other words the government? Here we have a distinction between judge and prosecutor, between the Bench and the Public Prosecutor's Office, which popular opinion still cannot grasp, either in letter or in spirit. It must be said that the media contribute, deliberately or otherwise, to maintaining this confusion. As the public prosecutor's main function is[Page102:] to make representations when the public interest is at stake, it is natural for the prosecutor or his deputy to be answerable to the executive authority. In this sense, they are not independent and cannot be so, no matter what corporative pressure they may be under. The members of the Bench are in a different situation, even though their recruitment and their career are determined by the law and they are paid by the State. This misunderstanding can be compared with that of confusing power with authority and refusing to accept the meaning of the expression autorité judiciaire in the French Constitution of 1958. The history of words and concepts teaches us, if we know a little Latin, not to confuse potestas with auctoritas.

The correct usage of words, which Confucius saw as a mark of good government, has also made it possible to differentiate between jurisdictio and imperium in the work of a judge. Even if the latter term gives rise to some doubt and even dispute, the word jurisdictio, from which both the action and authority of the courts derive, would appear at first blush to leave wide open the field in which jurisdiction may be exercised and the apparently limitless number of persons whom citizens in democratic times may recognize as possessing, and upon whom they may even confer, the power to judge others, at least when it comes to their private affairs. The need for an exequatur or enforcement order is but an application to arbitrators-here likened to a foreign judge-of a more general distinction.

A protean requirement

Is the mission that judges are called upon to fulfil compatible with the independence required of them? Selected from common mortals, judges are naturally exposed to all sorts of influences and even pressures. When chosen as judges, are they really independent? No doubt the presence of the law will then be at issue, especially if it is recalled that, according to Kojève's outstanding analysis, legal action is characterized by the possibility of recourse, in the event of a dispute, to an impartial and disinterested third party. It is of course necessary to comply with the requirements for transforming one's right to legal action into the right to undertake judicial acts.

What are our expectations of judges, regardless of their origins, character, gender, age or nationality? Is it right to expect that a judge's ties with his history or his background will have no influence on his decision? Is it right to expect that he should put himself in the position of others, rather than putting them in his position? The alternative described by jurisprudence is easier to express than to understand. It clearly gives rise to a number of uncertainties and endless questions. To be sure, there are some safeguards, and in particular the procedure for challenging a judge. But this is usually left to litigants. And as they cannot act on mere suspicion, many hidden links of dependency may remain. One knows how difficult it is for the ordinary man in the street, or layman, to judge others, to understand events and to take account of the reasons behind human behaviour. One tends to forget that a similar perplexity faces judges, especially those chosen by the people they judge, through an arbitration submission agreement. What independence are we talking about? The independence he is presumed to have ? Or independence with respect to his origins or merits? That would be to ignore the effect of the passage of time. Moreover, the amount of trust placed in a judge varies, as illustrated by the varying use of amiable composition.

Arbitration and trial

There are many activities that call for special independence. The liberal professions provide daily proof of this. Barristers and solicitors, accountants and auditors constantly[Page103:] remind us of this, so much so that there is a risk of confusion between the liberty in the 'liberal' professions and the requirement of independence so readily invoked in their professional codes. For a long time, the contrast between those engaged in liberal professions and those in employment, or civil servants, was used as a criterion. Since the abolition of guilds, however, the independence of tradesmen has blurred the landscape. As for career judges, they are in all certainty civil servants. And while they are able to benefit from a number of guarantees and even privileges-whether justifiable or not-they are not alone in this.

II. . . . but a judge with a difference

Private individual

Starting from this fairly general vocation, not to say an aptitude for performing judicial office, the judicial system is based on the pre-eminence of official judges, professionals and non-professional. Their privileged position results in their having a monopoly in certain areas and, more generally, in matters relating to public policy. Furthermore-and this is what characterizes ordinary law-State courts hear all matters that do not come within the jurisdiction of other State authorities. This is precisely the field in which arbitration is found and in which the question of the independence of arbitrators would appear to arise with greater urgency than elsewhere.

Arbitrators are customarily said to be private individuals chosen as judges for that reason. This statement calls for numerous qualifications that impact on the requirement of independence. First of all, because arbitration does not necessarily involve a trial. It is needed in a wide variety of competitions, especially in the present day and age, which has broadened the meaning of the term. Thus an arbitrator in sport-known in French as arbitre and in English as referee-is not chosen by the trainers and their teams. Yet, top-level referees, particularly in football, are nonetheless in a position of dependency vis-à-vis sporting federations. A referee who has to count up fouls and hand out red cards during a match must remain neutral, which is not true of a judge conducting a trial. Another, different example is the conduct of an examination with a jury, whose task makes it akin to an independent administrative body.

Triangular contract

Let us now concentrate on the settlement of disputes by arbitration. Here the task of the arbitrator, or the body responsible for appointing the arbitrator when the time comes, derives from a contractual agreement. This makes it necessary to consider possible connections which the arbitrator might have with the appointing body. Putting it simply, the operation involves three people: the parties to the procedure and the arbitrator (or arbitral panel). The triad is based on a specific set of facts, for which a triangle serves as a convenient metaphor. An isosceles triangle rather than an equilateral triangle, because the existence of an underlying contractual relation binds the arbitrator as well as the parties, which explains why, when the arbitrator fails to fulfil his obligations, he is sued on the basis of contractual liability. In this sense, the arbitrator is more dependent than a State judge, even disregarded the fact that he is not immune from being sued in the ordinary State courts on grounds of personal liability, albeit often within limits. [Page104:]

A look at history

Here, the discussion could benefit from a historical perspective. It is interesting to consider why, in mediaeval and even in modern times, there was quite a clear-cut separation between institutional justice and contractual justice- so much so that an institutional judge was forbidden to act as an arbitrator, as such behaviour was considered offensive to the king's justice. This was tantamount to bringing the world of litigation into the solution of disputes and could be explained chiefly by the particularities of trade, or at least of business, markets and professions. There are signs of a similar attitude re-emerging today with respect to judges appointed as arbitrators, alongside the overburdened system of State justice, whose problems are bemoaned in terms of recruitment and staffing policies.

In understanding what arbitrator independence may be-and this is an issue associated with modern times in the long history of arbitration-legal theory, and especially the work of Domat, has been essential, insofar as there has been an attempt to accommodate arbitration by integrating it into judicial life (see esp. J. Hilaire, 'L'arbitrage dans la période moderne (XVIe-XVIIIe siècle)', Rev. arb. 2000.187).

Choice of arbitrator

According to Domat, the spirit that should preside over the choice of an arbitrator from the outset is that he should 'appear not simply as a judge chosen by the parties for his personal qualities of good sense and fairness, but at the same time for his professional competence: his role thus becomes that of a judge and an expert'. If that competence is lacking, then, according to Domat, the arbitrator is obliged to withdraw, being devoid of competency on grounds of incompetence. Once again, the matter boils down to two alternative paradigms: should one choose a good arbitrator or subject arbitrators to good rules of conduct?

Following on from there, we come to the very heart of the problem. On this subject, Domat's analysis can be found in both Les lois civiles dans leur ordre naturel (Book. I, Section XIV, 'Des compromis'), which for him corresponds to the private law aspect, and Droit public, which, as the name suggests, relates to the public law aspect. In connection with the latter, without actually mentioning independence, Domat refers to neutrality and the need to act as 'mediators of peace between the parties': 'as it often happens that in arbitration agreements each party appoints his own arbitrator and considers him not so much a judge as his lawyer briefed to represent his interests, this intention by the parties does not mean that those appointed by them are not arbitrators and have an obligation to determine the rights of the opposing parties . . ."'

Where are the dividing lines?

How far can the requirement of independence be taken? It is clear to see that the distances vary and are subject to change. From the viewpoint of judicial sociology, the effects of origin, nationality, geographical ties and socio-professional status must not be overlooked. Even if the conclusions reached are insufficiently reliable and stable, the choice of an arbitrator on the basis of gender is not anodyne. Regional connections are not without consequence. It is not by chance that, in the context of unified legislation (despite some local laws), judicial regionalism was asserted on the basis of old statistics that have been gradually improved, such that the results obtained, jurisdiction by jurisdiction, with the help of new technology, have highlighted the diversity of the case law from different countries. Added to which, the judicial humanism of former times[Page105:] has given place to increasing professional specialization. Any talk of diversification implies a reference to Durkheim's analysis of solidarity through similarities and solidarity through the division of labour in society.

All knowledge behaviour is involved. Thus, debate over the mere fixing of arbitrators' fees and their effect on the independence of arbitrators takes place in a very wide setting. No matter how imaginative we are as to the various possible relays between the deposit of the fee money and its ultimate distribution amongst the arbitrators, there is no denying the existence of a contractual relationship-of a contractual nature, it may be added-between the person who pays and the service rendered, whatever distance is supposed to separate them, or between those registered on a list of arbitrators and those not registered, and the more or less occult influence of colleagues or fellow arbitrators. But such a relationship obtains in many other situations. As long as judges were office holders, they remained independent. Later, particularly in the nineteenth century, the notables who dispensed justice were often wealthy persons. There followed, after the Second World War, a period of proletarianisation which made it necessary to reform the structure of the judicial world. The result was a relationship of greater dependency. And then in the second half of the twentieth century a further type of allegiance arose with the emergence of judicial trade unionism.

Ideal and reality

In any event, whatever the field, dependency is a reality, while independence corresponds to an ideal. The future brings with it new perspectives. Two terms have acquired increasing importance. Firstly, protection, which is coming into widespread use, beginning with the attention that is now-fortunately-given to dependent persons. Secondly, network, which is tending to replace the term pyramid when talking about legal structures, with the effect that areas of incompatibility and the hunt for dependency have been widened, sometimes beyond all proportion.

Perhaps we should be looking elsewhere for an explanation by linking it to a notion that we are in a better position to understand nowadays. The business world has developed in such a way as to highlight the existence of a key element in law: conflicts of interest. There is a natural tendency, on the part of the layman rather than the lawyer, to consider this state of affairs as an evil which must be suppressed by cutting at its roots. Strangely, the same is not said of conflicts of law, even though subjective rights are defined as legally protected interests. But shortage of space and time precludes us from pursuing that idea. Rather, let us insist on the indispensability of conflicts of interest to law: without them, law would indeed have no raison d'être.

This being said, the law can never resolve such conflicts in an entirely satisfactory way, given the ups and downs of reality. The same applies to the position of the arbitrator. Where matters of the mind and the human person are concerned, there is at the end of the day the deeply-rooted conflict each one of us, whether arbitrator or not, has with him or herself, constantly faced with the two facets of personal identity: permanence and change. This is doubtless why we need to experience dependency in order to understand independence. [Page106:]