How arbitration law went from uncharted territory to a ‘sexy’ field of practice
When she was looking for an internship, Jacomijn van Haersolte-van Hof happened to meet one of the founding fathers of arbitration law. ‘At the time, it was still a subject you heard nothing about as a student.’ Since then, arbitration has grown into a ‘sexy’ area of practice about which students are keen to write a thesis and in which many lawyers specialise.
People who want to resolve a dispute without going to court can appeal to an arbitration tribunal. Such a tribunal consists of experts with specific knowledge about resolving a conflict. ‘That’s often faster and more efficient than going to court’, she says. ‘You can define the procedure yourself and there is no appeal or cassation. You receive a judgment and both parties have to live with it. Arbitration judgments are also more enforceable worldwide than judicial ones.’ Arbitration law is mainly used in conflicts between companies, investors and governments.
Arbitration law demands much more creativity and flexibility from the arbitrators and lawyers involved than judicial proceedings do. ‘You often litigate in a different language because the disputes are international. Instead of sitting in a courtroom, you might be in a conference centre or a hotel with lawyers. The procedure is far less of a straightjacket, so you have a lot of freedom to do it your own way. You have to be creative as a lawyer because no regulations govern how things must be done. That’s what I enjoy about it.’
A fateful visit
Van Haersolte-van Hof found out about arbitration while she was still studying law. At first, she did not really like her studies, she confesses. ‘We attended lectures in an enormous hall with 500 students. It was uninspiring.’ She longed to work more closely with people. Her parents, both physiologists who had studied in Leiden, knew only one legal scholar, so that was who she talked to when she went in search of a thesis topic. He turned out to be one of the founding fathers of arbitration law, Pieter Sanders. ‘He told me: “Girl, what you want is arbitration law”. I had no idea what he was talking about; I had to look it up in a dictionary.’
Now she teaches arbitration law herself and sees many students who also want to write a thesis on it. ‘It’s big business these days. It’s seen as a sexy topic. Commercial arbitration is much more prestigious than it used to be; most law firms have departments that specialise in it.’
So arbitration law offers a clear and swift verdict in the event of a conflict. But what if one party does not want to abide by the arbitration tribunal’s verdict? In that case, it is still possible to go before the court. In her inaugural lecture, Van Haersolte-van Hof addressed the tension that arises in such cases. ‘What is the jurisdiction of the arbiter and what is the jurisdiction of the judge?’
In principle, courts are reluctant to review arbitral awards, but that is not the case when it comes to reviewing the arbitrators’ competence. ‘The judge is supposed to review de novo, i.e. by re-examining the entire case. But as a judge, you don’t want to silence the arbiter. Nor do you want to give the parties a tool to obstruct arbitral proceedings. That is very difficult, and it is handled differently in each country.’
The cases that come before the courts are complex and lead to interesting case law, which is why Van Haersolte-van Hof still loves her field of work. Alongside her professorship, she is still in the thick of arbitration practice as Director General [EGS1] of the London Court of International Arbitration (LCIA), one of the world’s leading international arbitration institutions. ‘In my work as an arbiter, all sorts of things come together. Today I might work on English law reform, and tomorrow I might speak on German law in Germany. You have to know all the playing fields and the people working in them. The combination of law and practice: that makes me very happy.’