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Conservatism is not necessarily right, nor is it invariably wrong. Errors and mistakes can be made under stress, and it does not fall upon the Arbitrator to offer criticism years after the event. You must, therefore, not expect miracles of justice. To select a Con sultant as Arbitrator is not easy. The disputants are themselves seldom able to make the right choice. Is it not better to have tribunals of three and to leave to the original two experts the task of electing the third Arbitrator. His standard of competence will be known to them and his latent ability to decide a complex issue can only be assessed by those on the same level. The choice is not one which can be left to an Institutional President, from his confidential private list of under-nourished or under-employed candidates. This is where the Institutional system fails. Leave it to the two Arbitrators, who are already familiar with the problems, to make the third appointment. But the moral if any, still remains in sending for the Consultant at the time of drawing up the Contiact; not after the dispute has arisen. It may be false economy to dispense with expert advice, and rely when there is trouble on the doubtful safeguard of an Arbitration clause. SirWith reference to Mr. Weir's letter in the April issue I regret that I cannot accept the entirety of his interpretation of s.3 of the Administration of Justice (Scotland) Act, 1972. He assumes that the Court of Session can only act at the behest of one or other of the parties ; whilst it must be almost axiomatic that the Court is unlikely to learn of anything being amiss except from the parties, I can read no prohibition precluding their taking action if their information comes from some extraneous source. Under their inherent powers they must be able to intervene, by interdict, inhibition, reduction, removal, etc., whenever this is appropriate to ensure that "Right is done to all manner of people". Mr. Weir goes on to say that the Clerk can take councel's opinion. No Clerk would do such a thing without a clear and unequivocal instruction from the Arbiter, and although the Clerk would be the normal channel of communi cation in these circumstances, there is nothing mandatory about this. If complicated legal questions are likely to arise, a prudent Arbiter is far more likely to invite a suitable Advocate to sit with him as a Legal Assessor. D. M. R. ESSON "Thornwood", 4,|Granville Street, Helensburgh.
Asian International Arbitration Journal – Kluwer Law International
Published: Aug 1, 1973
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