Journal Article

Metaphors, Maxims, and Other Mischief The Freshfields Arbitration Lecture

Jan Paulsson

in Arbitration International

Published on behalf of The London Court of International Arbitration

Volume 30, issue 4, pages 615-638
Published in print December 2014 | ISSN: 0957-0411
Published online January 2015 | e-ISSN: 1875-8398 | DOI: https://dx.doi.org/10.1093/arbitration/30.4.615
Metaphors, Maxims, and Other Mischief The Freshfields Arbitration Lecture

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This is an extended warning against mental shortcuts. For example, the metaphor of the 'separability' of arbitration clauses is merely a way to describe a conclusion, not a tool for reaching it. That involves the hard work of considering the vast array of conceivable alternative , hypotheses, which might, with much effort and sef-doubt, lead to things like the three dense sentences designed by the author as a series of over-arching presumptions to establish 'in the broadest possible way who should determine questions about arbitral authority, when they should do so, and with what degree of finality'. Three maxims are taken to task: that justice must be 'seen to be done', ex nihilo nil fit,, and the 'unruly horse' of public policy defences. The first may supply comforting self-applause to a decision of censure, but is unlikely to be helpful in establishing that there has not been an impropriety. As for the second: if you are discussing something, it is obviously there, and you cannot decree it out of existence by calling it by a Latin name. And how does it help us to say that public policy is an unruly horse if we do not learn how to get off it? Somewhere in the middle, the 'mischief of formal logic, when used by amateurs, is exposed as yielding nothing but sterile arguments about the definition of terms.

Journal Article.  12724 words. 

Subjects: Arbitration ; Company and Commercial Law ; Competition Law ; Employment and Labour Law ; Settlement of Disputes

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