Journal Article - LMAA | London Maritime Arbitrators Association

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118 Arbitration Nowadays, the concept of the arbitrator-advocate seems a strange one to us. That is partly because, due to some changes in shipping practices and in English arbitration law, the umpire is nowadays almost unknown, having been replaced by a third arbitrator who acts in conjunction with the other two arbitrators. It is also partly because the recent and present generations of arbitrators, unlike some of their predecessors, do not seek to take any position in relation to the disputes on which they have to adjudicate other than that which seems to them to be correct on their understanding of the evidence and the law. In 1960, arbitrators whose names were on the Baltic list decided to form themselves into an association—the London Maritime Arbitrators Association (LMAA). Some of you will know that the Association has just celebrated its 50th anniversary with a very successful one-day conference and a dinner attended by more than 675 people in the heart of the City of London. I shall talk more about the LMAA shortly. Another consequence of the fact that Britain was at the heart of commerce and maritime activity was the creation, hundreds of years ago, of a specialist Admiralty Court to deal with shipping matters. In those days the problems with which the court was faced were predominantly to do with matters such as collisions, salvage, cargo damage, crew’s rights, bottomry bonds, general average and the like, but commercial contractual disputes also turned up from time to time. Towards the end of the 19th century, it became apparent that a great deal of commercial (and particularly shipping) work was coming to the English courts and that it required specialist attention. Indeed, in one case, the Court of Appeal was extremely rude about one judge who did not have the relevant experience, and who made a complete mess of a commercial dispute he had to decide. Accordingly, a specialist Commercial Court was set up. That marked something of a turning point for the development of English commercial law, since it seems to have attracted to London a large number of litigants from overseas. Nowadays the court has available 16 specialist judges, of whom at any one time about half will be sitting hearing commercial disputes. It is perhaps necessary here to explain that English judges are not trained as professional judges, but rather come from the ranks of the Bar where they have worked as advocates, usually for 25 years or more. Those who sit as commercial judges will have had very considerable experience at the Commercial Bar. The English Commercial Court now enjoys a reputation which I believe to be second to none in the commercial world at large. One more matter of history (although I do not pretend to have covered every single element): after the end of World War II there was a huge expansion of international trade which, inevitably, meant a huge expansion in maritime activity around the world. At that time, because of the importance of Lloyd’s, the Baltic Exchange, the P&I Clubs that had developed in the United Kingdom, the commodity trade associations which had established themselves in London and similar factors, London’s position at the centre of this trading world was immeasurably strengthened. 3. Circumstances I have already indicated that there is inevitably an overlap between the various headings that I have identified, and this is where the first obvious example occurs. The circumstances that presently prevail and in which London finds itself as the premier centre for maritime arbitration in the world, are of course derived from the matters of history to which I have referred. And because history is a continuum, those considerations still apply, although sometimes with a different force from that which they previously had. As it seems to me, the reasons why London is now the predominant centre of maritime arbitration are (leaving on one side the fact that I believe London is chosen almost automatically in many instances when contracts are being negotiated, without much thought (2011) 77 Arbitration, Issue 1 © 2011 Chartered Institute of Arbitrators
London Maritime Arbitration 119 being given to any alternatives) that it still has a huge maritime community, that English law and lawyers are—in the field of shipping at least—second to none, and that the integrity of its processes and practitioners is—quite rightly—seen to be beyond question. 4. People As in any field of human endeavour, people, and their experience, skills and knowledge, are crucial. I have already, in effect, indicated in general terms some of the significance of the London maritime community (or perhaps I should say communities, given the different professions involved). Let me now focus in particular on two categories of people who are, in my opinion, of the greatest importance in the context in which I speak, namely lawyers and judges on the one hand and arbitrators on the other. I have already explained that our judges are experienced practising lawyers before they become judges and, in the case of commercial—and more particularly shipping—matters, they will invariably have had considerable experience as practising lawyers in dealing with cases within this speciality. Not only will they have had that experience, but they will have been trained by other senior lawyers who, before them, had such experience themselves. When nowadays I encounter some quite senior advocates arguing cases in front of me, I can see (because I know their histories) an unbroken line stretching back five or six generations to other advocates who were doing the same kind of work and whom I knew when I first came into this area of activity over 45 years ago. (Many of those I first knew went on to become judges. Some of them went on to the Court of Appeal and the House of Lords, and have now retired!) Obviously, those I first knew 45 years or more ago had themselves been trained by others who in turn came from similar long, unbroken lines of shipping and commercial legal experience. The value of this cannot be over-estimated. It means that the handling of cases by the lawyers involved is first-class. It also means that the judges who have to decide any such cases are of the highest standard. I have mentioned advocates, but of course in our system we have a divided profession of advocates (barristers) on the one hand, and solicitors—who prepare cases but do not, generally, advocate them—on the other. What I have said about barristers is equally true for solicitors. The question may arise as to what, in the context of arbitration, is the importance of judges. I shall address that a little later when I talk about processes in London maritime arbitration, but at this stage let me just say that it is, in my view, one of the great features of London’s attractiveness. At this stage, though, I am dealing with people, not processes. Having mentioned judges and lawyers, let me talk a little about arbitrators. In the 1940s and 1950s, as I understand it, most of those who practised as maritime arbitrators were concurrently shipping brokers who worked on the floor of the Baltic Exchange. I myself remember hearing names such as Browne, Bunker and Conybear; none of whom I knew. In the 1960s there were still many brokers and commercial people working as arbitrators, but now they began to be joined first by one Richard Clyde, a solicitor who had just retired, and later by people such as Cedric Barclay, who was principally an engineer and shipowner, and Donald Davies, who had been a mariner and had then qualified as a lawyer. By this time the amount of arbitration work—no doubt due to the huge expansion in trade I have already mentioned—had increased substantially and the types of case became more varied. I suspect this is one reason why a different type of person began to be involved as arbitrator. In those days there was not a great deal of immediate involvement of lawyers in London maritime arbitration. Many cases were dealt with on a very low-key basis. Submissions to arbitrators would commonly be made by brokers on behalf of their principals, or other non-legal representatives. Lawyers might have been consulted, but any involvement they (2011) 77 Arbitration, Issue 1 © 2011 Chartered Institute of Arbitrators
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