Originally from:
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
Preview Page
Chapter 10
Formalism in Arbitration--Good or Evil?
Bernhard F. Meyer*
I. INTRODUCTION: THE EXTASI CASE
I would like to start my presentation with a personal experience
made with German state courts. It shows how formalism can lead to
extensive proceedings and how a formalistic system may be abused.
Jean-Pierre M. was a young successful Swiss entrepreneur when
he sold his electronics device company for 4 million Swiss Francs
shortly after his 30th birthday. With this early earned fortune, he
fulfilled his personal dream. He had a 76-foot luxury sailing catamaran
built for him, his family and ten paying passengers. For the next eight
years, Jean-Pierre M. spent a life as full-time skipper and scuba diving
instructor in the Caribbean Sea. He had no land-based residence
anymore and was fully dependent on his new tourist business. His
dream ship, SS Extasi, was now home as well as the basis of his living.
On November 1, 1998, at the fall of the night, about 300 nautical
miles from St. Thomas, the dream came to an abrupt end: SS Extasi
was destroyed by a heavy board fire. The accident started slowly with
unspecified smoke in the deep body of the ship. But then, the fire
developed so aggressively that the skipper (who was alone aboard)
could not even emit an SOS emergency signal, nor could he rescue
anything of his personal belongings. After a first explosion, M. had to
jump overboard to save his naked life. Sitting in his life raft, M.
suddenly realized that nobody knew of his accident, that he was
drifting in the middle of the ocean, and that he had no appreciable
water and food reserves to reach land. M. was prepared to die when he
saw his ship sink in about one hour’s time, after a spectacular series of
explosions in the night sky caused by bursting scuba tanks.
Certainly, it was pure luck that M. was found and rescued only
Bernhard F. Meyer, LL.M, FCIArb, MME Meyer Müller Eckert Partners, Kreuzstrasse 42, 8008 Zurich.
