The Idea of Arbitration (Clarendon Law Series) by Jan Paulsson

Abstract

Jan Paulsson The Idea of Arbitration (Clarendon Law Series) 2013 Oxford University Press Oxford 336 9780199564163 In his satirical work, The Dictionary of Received Ideas (Le Dictionnaire des idees recues) , which was posthumously published in 1913, Gustave Flaubert famously challenged the cliches of his day, the platitudes to which people automatically resorted as a substitute for actual thought. In his new book, The Idea of Arbitration (Oxford 2013), Jan Paulsson does something similar to the platitudes of legal practice. Take that oldest of chestnuts about the importance of justice being seen to be done. Paulsson writes: 'Not only must Justice be done', it is said, 'it must be seen to be done' - and all heads nod gravely. But why is that so? If injustice may be corrected, is that not enough? Why deprive a litigant of a deserved outcome because of the mere appearance of unfairness?' (91).1 While Paulsson ultimately concludes that there is some merit to the familiar adage, this is the result of analysis rather than presumption. Or take that worn out expression about public policy being an unruly horse. Quoting Richard v. Melish [1824-34] All ER 258, at 266, in which Lord Burroughs wrote the often-quoted passage, Paulsson writes: 'This passage is endlessly repeated but hardly ever examined in context.' (130). And, following such an examination, Paulsson argues that the case 'tells us nothing about what it would actually take for a contract to be held to contravene public policy'. (131). Or take the common opening of many books about arbitration - the search for reassurance in historical antecedents. Paulsson does not let this slide either. 'These references, standard fare in the opening pages of books about arbitration have more than a whiff of propaganda about them'. (9). Paulsson goes on to assert that 'modern arbitration cannot persuasively claim a lineage in classical Islamic law. This example should make us …