The 2001 Goff Lecture: The Lawyer's Duty to Arbitrate in Good Faith

Abstract

IT IS a great honour to be asked to deliver this Goff lecture, not only because it is a privilege to follow in the footsteps of so many distinguished lecturers but also because this lecture bears the name of one of the most respected English jurists of my professional lifetime. There are many stories of Robert Goff: he was one of the greatest advocates I ever heard; he was a creative scholar; he was the most courteous judge; he is now a distinguished arbitrator; but above all else, he was and remains the epitome of fairness and human decency. To listen to his advocate's argument even in the most contentious case provoked no sense of ill-will, just despair at the power of his legal logic; and to lose a case before him as judge left only a strong sense of his intellectual honesty. To Lord Goff, the title of this lecture might seem so self-evident as to preclude any serious debate. Sadly, however, the debate is provoked by growing difficulties which cause the practice of transnational arbitration to fall short of his ideals. For the parties to an international commercial arbitration, justice should be the paramount objective; and procedural fairness by their legal representatives is subsumed in that single objective. But the practice of international arbitration is not so simple, certainly not for the parties professional lawyers coming from different jurisdictions to a still different place of arbitration. Lawyers are not musicians or ballet dancers: a lawyer's training, skills and ethics are still essentially rooted in a national legal system; and it is far from clear how and to what extent national professional rules apply abroad to the transnational lawyer in the international arbitration process. For example, for a European Union lawyer practising abroad in a host Member State, Article …