More Lawyers But Less Law: Maritime Arbitration in the 21st Century

• Author: Martin Davies
• Position: Admiralty Law Institute Professor of Maritime Law, Tulane University Law School. Director, Tulane Maritime Law Center. Professorial Fellow, Melbourne Law School. This paper is based on the the Annual AMTAC address delivered by the author on 2 July 2009 at the Federal Court of Australia, Brisbane, but it is more extensive. Among other things, it...
• Pages: 13-20

(2010) 24 A&NZ Mar LJ 13

The 2009 AMTAC Addre ss

MORE LAWYERS BUT LESS LAW: MARITIME ARBITRATION IN THE 21ST CENTURY

Martin Davies∗

1 Introduc tion

Maritime arbitration is increasingly dominated by lawyers, both as arbitrators and in argument before the arbitral

tribunal. At the same time, judicial review of arbitral awards is becoming increasingly restricted. That leads to

greater autonomy for the arbitral tribunal but also less scope for the development of precedent in judicial decisions.

Finding the right balance between autonomy and reviewability is an important but difficult task for a country that

seeks to establish itself as being hospitable to arbitration. On the one hand, the parties to an arbitration generally

favour finality of result and are uneasy at the prospect of arbitration being merely the first step in a protracted

dispute resolution process that goes on to be fought out in court. On the other hand, there must be some scope for

judicial review of what the arbitral tribunal does in order to maintain the integrity of the arbitral process. In the home

of the two main centres of maritime arbitratio n, London and New York, the law is in some degree of flux in relation

to finding the right point of balance between autonomy and reviewability. In Australia, there has as yet been little

opportunity to test the relevant statutory provisions.

Section 2 of this paper is concerned with the increasing involvement of lawyers in maritime arbitration. Section 3 is

concerned with the restriction of judicial review of arbitral awards. The combined effect of these two phenomena is

the rather paradoxical situation alluded to in the title of the paper. There may be more lawyers involved in maritime

arbitration but the end result may be less law, in the sense of judicially created precedent that can be applied by

future courts and arbitral tribunals.

2 More Lawyers

The 2008 William Tetley Maritime Law Lecture at the Tulane Maritime Law Center was delivered by Bruce Harris,

a full-time maritime and commercial arbitrator in London and former President of the London Maritime Arbitration

Association (LMAA). Mr Harris has enormous experience as an arbitrator: he has been appointed as arbitrator more

than 8,000 times and is signatory to more than 2,000 arbitral awards. He does not, however, have formal legal

training and he is not admitted to practice as a barrister or solicitor. In his Tetley Lecture, Mr. Harris noted that in

that respect, he is something of a dying breed. Speaking of the LMAA, of which he has long been a member, Mr

Harris said:1

Even once the LMAA was formed, in 1960, its membership was almost entirely made up of brokers and others directly

involved in day-to-day shipping activities. Nowadays, though, all that has changed. Today’s maritime arb itrators – or at

least those who do the majority of the work in London – are mainly people (sadly only men, in fact) who have a legal

background. A couple have worked in law firms, at least o ne has practised as a barrister, and a number have worked in

P&I Clubs, usually after obtaining a practisi ng certificate as a lawyer.

This is a phenomenon that is often the subject of complaint. There are not, we are told, enough truly

commercial arbitrators: we need more people fro m the industry, not lawyers.

∗ Admiralty Law Institute Professor of Maritime Law, Tulane University Law School. Director, Tulane Maritime Law Center. Professorial

Fellow, Melbourne Law School. This paper is based on the the Annual AMTAC address delivered by the author on 2 July 2009 at the Federal

Court of Australia, Brisbane, but it is more extensive. Among other things, it deals with some developments that have occurred since 2 July 2009.

Editorial. Note: This address is also available at the AMTAC website (http://www.acica.org.au/amtac.html) and appears here with the kind

permission of both the author and AMTAC. MLAANZ is a foundation member of AMTAC.

1 Bruce Harris, ‘Maritime Arbitration in the US and the UK, Past Present and Future: The View from London’ (Paper presented at the Tulane

Maritime Law Center at Tulane University Law School, New Orleans, 4 March 2008) 6.