Tuesday, October 14, 2008

Arbitrator or “Arbitraitor”? Part 1

Arbitrator or “Arbitraitor”?
[Common Law Journal Quaterly Law Review 2007 Volume 4 October-December]
Syed Adam Alhabshi

The Big Question?

The big question that surrounds arbitration practitioners is the quality of a successful arbitrator. More often than not, an arbitrator is selected based on his previous experience and reputation. A number of arbitrators conduct arbitration on a regular basis, getting numerous offers to the extent that they have to decline some cases, whilst some of the new generation arbitrators are claiming that they are just as good as their senior counterparts in delivering good awards.

An arbitrator is a professional who is formally empowered to examine the facts submitted to him and to decide the disputed matter justly. An “Arbitraitor” on the other hand, is a traitor to the arbitration profession. He[2] is an imposter who destroys the good name of arbitration under the identity of an arbitrator.

The Internal Difference

I have had the opportunity to observe many good arbitrators be it in Kuala Lumpur Regional Centre for Arbitration (KLRCA), in Singapore or also in Hong Kong. Many of them possess colourful backgrounds, fantastic qualifications and vast experience in their technical areas. Nevertheless, some comments and criticisms flow in endlessly when some of the arbitrators are about to complete their quasi-judicial tasks.

The standard requirements for an arbitrator are quite arbitrary. Anyone can prepare an excellent résumé about himself. However, in most cases, such résumé’s are based on technical and professional expertise. What is more important is the integrity of the person which may not be reflected in the résumé. It is often assumed that a professional is also one of high integrity. Such an assumption have often been proved incorrect.

The quality of an arbitrator’s capability and expertise is demonstrated by the superiority of the Award. Excellent arbitrators strive very hard to give a concrete Award. These brilliant Awards, more often than not, are being upheld even when challenged in a Court of Justice.

He Who Knows Not Evil, Knows Not Good!

What then constitute the characteristics of an “Arbitraitor”? In general, anything that is the opposite of an arbitrator will make an “Arbitraitor”. There is no clear cut answer as to how we recognize an “Arbitraitor” but there are certain internal criteria that reflect the negative traits of an “Arbitraitor”.

The list below can help us identify the traits of an “Arbitraitor”. Readers are urged to identify these traits carefully and ensure that they do not possess the traits or choose an arbitrator(s) who has such traits.

Envy: The Pain of Another’s Lucky Star.

Envy is a unique reaction which results from the knowledge of another’s success. Most can understand envy as having both positive and negative consequences. Islam teaches that one should be envious of two kinds of persons. The first is a person who is pious and carries out a lot of religious rituals and the second is of the knowledgeable persons. The reasons will motivate one to improve himself and eventually be a religious and knowledgeable person. Much knowledge without spiritual values will not make a person wise.

However, there is also the other side of the coin. The darker side of envy is very harmful. It is a feeling of distress for not having what another has which eventually will lead to resentment and hatred. It has the power to either motivate one to adhere to many evil means to level the playing field or to frustrate the other successful person.

According to Muhammad Abul Quasem[3] in his book, “The Ethics of Al- Ghazali – A Composite Ethics in Islam[4]” Kuala Lumpur, p.122:

“Envy is a state of mind in which a man is pained when another person obtains any good, and he wants that good taken away from him even though he himself will not obtain any advantage from its removal and what more if he does gain some advantage with such removal…(Emphasis added)”
An “Arbitraitor” is envious negatively of another arbitrator’s achievement or another institution’s success. It hurts him emotionally to see another arbitrator succeed. Instead of equipping himself with the necessary expertise needed to improve his poor arbitrating skills, he prefers the illicit task of sparking hatred and puncturing the former’s reputation to level the playing field.

[1] LLB (Hons) International Islamic University Malaysia; Former Legal Executive of the Kuala Lumpur Regional Centre for Arbitration.
[2] All of the masculine terms in this paper include both genders.
[3] Lecturer in Islamic Studies at the National University of Malaysia.
[4] A comprehensive account of the ethical thought of Abu Hamid Muhammad al-Ghazali, also known as Imam Al-Ghazali, one of the greatest thinkers and reformers in the history of Islam. The book was published by Muhammad Abul Quasem, the author himself.

0 obiter dictum: