Download

Anti-arbitration: Olympic justice

Michael McIlwrath (MDisputes)

August 2, 2012

LONDON OLYMPICS, August 1, 2012 — Badminton officials took the extraordinary step today of tossing out four teams for deliberately trying to lose their preliminary matches. The eight disciplined players were found to have conducted themselves “in a manner that is clearly abusive or detrimental to the sport.”

Imagine immediate (and less severe) consequences for behavior that is abusive and detrimental to the conduct of arbitral proceedings. Would this generate only protests, or also respect for institutions and arbitrators who show they have an Olympic backbone?

Tags: Discipline

Comments (3)

Your email address will not be published.

Geoffrey M Beresford Hartwell

August 3, 2012 AT 10:48 AM

With great respect (really, I'm an engineer, believe it!) Michael seems to be looking at arbitrators as authorities, akin to Judges, to be respected for their office. The fact is that they have no robes beyond the clothes they stand up (or sit down) in. Parties have to be managed with tact and, if that isn't possible, arbitrators have the choice of withdrawal (not a good option) or proceeding to a decision as best they can. Aggrandizement of arbitrators is, in the writers opinion, one of the worst aspects of the rise of the "super-arbitrator" the "haut arbitre" of modern times. Arbitration was conceived by traders as a mundane justice among peers. It's becoming, I suggest, a kind of erudite super-jurisprudence above the mortal plane. Read a typical ICC or LCIA award to see what I mean. I'll say nothing about the cost! Respect has to be earned, Michael. not compelled.

Michael McIlwrath response to Geoffrey M Beresford Hartwell

August 3, 2012 AT 4:22 PM

Geoffrey, while reciprocating the respect (really - but you knew that already!), I was sincere in phrasing this as a question, also in the hope of eliciting a response such as yours. We probably agree that institutions and arbitral tribunals generally do exactly as you suggest, manage misconduct with tact rather than by imposing immediate consequences. In this case, the Olympic Committee did not manage the situation with tact. Instead, they went to an immediate, dramatic penalty, expelling the players from the competition. In future competitions, don't you think the players will have more respect for the sport, and for the rules?

Nicolas Ulmer response to Michael McIlwrath

August 8, 2012 AT 2:21 PM

Michael's analogy of Olympic arbitrators' immeadiate action to commercial arbitration is not a good one, but the provocation he raises--that arbitrators could/should show more backbone is quite valid. I am not sure Geoffrey disagrees as the "super arbitrator" phenomenon he raises (also valid) is part of the problem and increasingly recognised as such. Nicolas Ulmer