Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About - ASA Special Series No. 35 - Hardcover
Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About - ASA Special Series No. 35 - Electronic
The Uncomfortable Truth: Once Discovered,
What to Do with It?
Elliott Geisinger and Pierre Ducret*
The subject of this contribution brings to mind Tolkien’s Lord of
the Rings, in which we read the tale of miner-dwarves who dug too
deeply in their quest for mithril and unwittingly unleashed a terrible
“daemon from ancient times”, the “Balrog”.2
Our readers may justifiably wonder what this fictional creature
has to do with international arbitration. The reason is simple: in their
search for the truth (also called fact-finding), international arbitrators
sometimes unearth matters trailing behind them an unpleasant,
sometimes even sulphurous, aroma. In this sense, and the comparison
with dwarves ends here, arbitrators sometimes find themselves in a
predicament similar to that of the dwarves who unwittingly awoke a
Balrog: what should they do if faced with a monstrosity?
International arbitration is the preferred and usual method of
resolution of disputes arising from international commerce. The range
of users is thus very broad, so that from a purely statistical perspective,
one may assume that parties to international arbitration are more or
less representative of mankind as a whole. Without taking an unduly
pessimistic view of human nature, and again based on statistical
probabilities, this means that arbitrators are likely to face a broad range
of human activities, including those of a less than savoury character.
Some of these activities may even fall foul of criminal law3 or of other
legislation vectoring important public interests. This is all the more
true as recent years have seen a marked increase of mandatory national
legislation and international instruments that are directly relevant to
Elliott Geisinger, Partner, Schellenberg Wittmer, Geneva.
Pierre Ducret, Associate, Schellenberg Wittmer, Geneva.