Fair Enough? Reconciling the Pursuit of Fairness and Justice with Preserving the Nature of International Commercial Arbitration
In a study co-authored by Richard W. Naimark, the Senior Vice President of the American Arbitration Association (“AAA”), and Stephanie E. Keer, certain surprises were uncovered regarding the perception of private international commercial arbitration by attorneys and business people. The most noteworthy was the “overwhelming relative importance of the fairness and justice of the process” compared to other traditional key characteristics of international commercial arbitration. In fact, the vast majority of survey participants ranked a fair and just result as the single most important attribute of the process, nearly twice as important as the closest-ranked attribute. The authors of the study proposed that a philosophical, even idealistic, concept of justice that implies both substantive and procedural justice is of significant importance to participants in international arbitration. A natural inquiry arises as to what elements of the process communicate fairness to participants. This Note explores the different characteristics of international commercial arbitration that arguably create the perception of justice “in a grand sense,” proposing that such characteristics are present in every aspect of the process. This Note does not dispute that participants increasingly care about fairness and justice in the process and that “good client service [by arbitration counsel] includes methods for communicating the essential qualities of the process as well as the results.” In fact, it is clear that the landscape of international commercial arbitration is changing and the traditional key characteristics of the process, such as speed, cost, informality, and confidentiality, are becoming both less practical and less lucrative. It is possible that the pursuit of fairness and justice, with its increasing desirability, will guarantee continued viability of the process without interfering with the practical feasibility of arbitration. To that end, this Note discusses at length the variety of attributes that communicate the elements of fairness and justice to the arbitrating public. However, this Note further argues that the quest for fairness and justice should not come at the expense of compromising the advantages and integral characteristics of international arbitration. The search for substantive and procedural justice capable of satisfying the global perception of fairness will interfere with the very essential fabric of a private commercial process and alter the very practice and nature of international commercial arbitration.