Holistic Arbitrating, Dinosaurs and the Tragedy of the Commons
The international arbitration industry is made up of several autonomous parts: arbitrators, counsel, parties, institutions, third party funders as the main players, plus all the supporting acts such as court reporters, journalists, directories, law schools, recruiters and so on. Each part generally, and understandably, operates in something of a bubble, without particular reference to the other parts. The global pandemic has now transformed that metaphorical bubble into a reality: we are all trapped in our homes, operating on our own. Yet in many ways this transformational change has meant we are actually interacting more than ever, through our enthusiastic embrace of video technology.
66 million years ago an asteroid called Chicxulub fell on the Yucatan Peninsula in Mexico, leaving a crater over 90 miles in diameter. It is widely believed that this calamitous event caused the extinction of the dinosaurs. I recently received an email from a colleague who drew an apt analogy between Covid-19 and Chicxulub. He described the current situation as “an external, extraordinary, unpredictable and inevitable event causing tremendous human and economic damage” but he emphasized the positive: that it might prove to be an event that “could reconfigure the way in which we live, work and interrelate”.
It may be that Covid-19 has accelerated the extinction of the modern dinosaurs in the international arbitration world by forcing us to use the technology at our disposal. I firmly believe we are rising to the technological challenge in extraordinary way. As someone who always works from home, except when I travel to hearings, I am in a good position to assess the change in my practice as a result of the pandemic. And there has been real, dramatic change.
As a result of the lockdown and the requirement to embrace new ways of working we are having to take a more holistic, less individualistic approach to our practices. For example, we have to be more thoughtful about how we prepare for virtual hearings. We must consider whether we have the appropriate home set up, we have to think about the optics, how we are perceived, how we communicate through this new medium. We have to consider whether all participants have equal access to the technology, we have to ensure that the playing field is level at all times. We must step out of our bubble and put ourselves in the positions of others in order to improve our own performance. I firmly believe that having to adapt and adjust will make us all better arbitration practitioners. There are already comments about how virtual meetings are more efficient than in person meetings, how virtual submissions are more focussed and discussions less prolix. There are also signs that practitioners are not necessarily properly considering the whole and are getting the optics wrong, with criticisms regarding dogs barking and other distractions during virtual hearings, casual discussions between judge and counsel being heard by all participants, and so on – but we will – or we should- learn from these issues and improve our practice and behaviour accordingly.
Adopting a holistic approach will translate not only into us becoming better practitioners but into an improved arbitration process: one that has a smaller environmental footprint, one that is, by definition, more efficient and less wasteful. Covid-19 is not a ‘great leveller’ as it has been described, it has a hugely disproportionate effect on the poor and vulnerable, but measures to contain it are, by and large, imposed indiscriminately, at least if you exclude the uber-rich self-isolating on their yachts in the Grenadines. The ‘Tragedy of the Commons’ describes the phenomenon where people benefit from everyone else’s sacrifices and suffer from making their own sacrifices, so everyone has an incentive not to make a sacrifice. The lockdown we are all under is the antithesis of the Tragedy of the Commons in that we all benefit from the sacrifice made by all of us to stay at home. I see a professional benefit as well as environmental benefit in our belated, but very welcome, adoption of technology in our practices.
