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Sydney Arbitration Week Great Debate

That retired judges make the best arbitrators

by Heidi Jones and Erika Williams

On 21 November 2016, as part of the Sydney Arbitration Week 2016, Resolution Institute was generously supported by McCullough Robertson Lawyers to host our Great Debate of the controversial proposition: That retired judges make the best arbitrators. Fiona Hollier, Chief Executive Officer of Resolution Institute welcomed everyone to the much anticipated event. Russell Thirgood, Partner and Head of Arbitration at McCullough Robertson introduced the debators and did an exceptional job as Master of Ceremonies.

The interest in this debate was that each of the parties argued against their own personal circumstances. Arguing against the statement were two retired judges. On the side arguing the statement was true were two expert arbitrators with a wealth of experience outside the bench.

To make the first argument was Janet Grey BArch MA M/AMA, a registered architect.[1] She claimed that retired judges made the best arbitrators for the following reasons:

  • that arbitration is always to be decided according to the law and judges have a lifetime of dealing with the law;
  • retired judges do not get confused by sideline procedural matters and can go straight to the heart of an issue;
  • an arbitrator needs to control proceedings, which a judge has experience in and the confidence to do so;
  • retired judges have practice ensuring keeping an open, impartial mind about a result; and
  • experts are often very unused to giving written reasons for their actions. Ms Grey commented, ‘all architects can draw, most are numerate but few are literate.’ Retired judges are practiced in providing written reasons for their decisions.

The Honourable Roger Gyles AO QC,[2] was first to argue against the proposition that former judges make the best adjudicators.

His Honour illustrated his points with several categories of ‘deplorable’ judges (with the rider that he would ‘name no names’) who would not be suitable as arbitrators including judges that are: irascible, indecisive, rude, malevolent, autocratic, too relaxed, biased, or ‘drinkers’.

His Honour pointed out the following main objections to the question arose, that: not all judges would make good arbitrators and former judges do not make good arbitrators in all cases.

The second speaker ‘for’ former judges being the best arbitrators was Malcolm Holmes QC.[3] In response to the above arguments, Mr Holmes noted that they only served to emphasise how some judges had difficulties performing as judges, not necessarily as arbitrators.

His arguments were based on the literature, and the cyclical demand for retired judges as arbitrators. Putting aside whether or not they did the best job as arbitrators, Mr Holmes said there was significant demand for retired judges as arbitrators. Consequently, many currently sitting judges were preparing themselves to turn to arbitration after retirement from the bench.

The final speaker was the Honourable Murray Tobias AM, RED, QC,[4] claiming not all retired judges will be the best arbitrators.

His Honour said the objectives of arbitration were to be quick, cheap, private and fair. Although there were any number of good judges, they are anything but perfect. His Honour focused on two main drawbacks for a person imbued with the requirements of judicial process placed into an arbitral setting that judges:

  • have lack of experience/knowledge of technical cases. If arbitration is supposed to be quicker than the judicial process, but arbitrators still require the assistance of experts, this negates the value of arbitration; and
  • are brought up in a rules based environment. Their role in a court is to decide in terms of whether there is compliance with the rules and to make decisions from ‘on high’. Judges in an arbitration may impose obligations on parties that they haven’t asked for, which might be suitable in a court, but is the very antithesis of arbitration.

The result of the Great Debate was decided by Resolution Institute Fellow, and debate adjudicator, Steven Goldstein, who found for the team arguing that retired judges do make the best arbitrators. However, by a show of hands of the audience, the general consensus appeared the opposite.

In any event, Mr Goldstein summarised the real result succinctly, and not at all surprisingly – that some judges make the best arbitrators in some cases.

 

[1] Janet Grey BArch MA M/AMA is an architect, registered with the NSW Architects Registration Board. She is also an arbitrator and mediator who specialises in dispute resolution in the construction industry and related professional matters. She works as a referee under the Uniform Civil Procedural Rules. In addition, she acts as an expert determiner, mediator and conciliator and as an adjudicator under the Building and Construction Industry Security of Payment legislation.

[2] The Honourable Roger Gyles AO QC - former Judge of the Federal Court of Australia has acted in many arbitrations as solicitor or counsel. He conducted a number of Court of Arbitration for Sport arbitrations and conducted substantive matters as a Deputy President of the Australian Competition Tribunal. He is currently the Independent National Security Legislation Monitor. He has previously been an Acting Judge of the Court of Appeal of the Supreme Court of New South Wales, a judge of the Federal Court of Australia and a Royal Commissioner.

[3] Malcolm Holmes QC is a Chartered Arbitrator and senior counsel at Eleven Wentworth Chambers in Sydney and an arbitrator member of 20 Essex Street in London and Singapore. He is an experienced international arbitrator and is a member of a number of regional arbitration panels and of the Court of Arbitration for Sport (CAS). He is a Fellow of the Chartered Institute of Arbitrators, a Fellow and a director of the Australian Centre for International Arbitration and a Fellow of the Institute of Arbitrators and Mediators Australia (now Resolution Institute).

[4] The Honourable Murray Tobias AM,RFD, QC - former Judge of the NSW Court of Appeal practised across all jurisdictions including the Supreme Court, Federal Court, Court of Appeal, Land and Environment Court, and the High Court. He was appointed a Judge of the NSW Court of Appeal in 2003 until he reached the statutory retirement age for a permanent judge in 2011 after which he held a Commission as an Acting Judge of Appeal until March 2016. He served as President on the NSW Bar Council and as Senior Vice-President of the Australian Bar Association. Prior to 1993 he was the legal member of the Casino Control Authority. He was made a Member of the Order of Australia in 1996 for services to the legal profession and military law.