FROM THE EDITOR’S PEN – JANUARY 2020
Advocate Eric Dunn SC was appointed by the Association as the editor of this e-periodical. Eric is a member of the Rivonia Group of Advocates and a senior member of the Johannesburg Bar. He is a Fellow of the Association of Arbitrators (Southern Africa) NPC and a member of the Society of Construction Law for Africa. Eric has a predominantly commercial practice, but over the past decade he has also focused on construction and engineering matters.
Eric has acted as a High Court judge on numerous occasions and has also appeared in many prominent reported cases in the High Court, Supreme Court of Appeal, and Constitutional Court.
ARBITRARILY SPEAKING!
After an absence of several years, the Association of Arbitrators’ board of directors resolved earlier this year that the Association’s periodical, Arbitrarily Speaking, should be revived to ensure that its members and other interested parties may keep abreast of the latest developments in arbitration, alternative dispute resolution, and matters associated with these areas of practice.
To this end, I was appointed as editor, and was seized with the immediate task of overseeing the periodical’s revival in its new format. This would not have been possible without the valuable assistance of the Association’s general manager, Ms Rochelle Appleton, and the expertise of the et al Group – specifically the endeavours of Ms Jolette Diab, the managing director of its Effects et al division, and the team she assembled to assist with the project.
It is envisaged that Arbitrarily Speaking will appear every second month, i.e. January, March, May, July, September and November. We trust that, with the passage of time, it will grow in stature and serve to address a range of topics of practical use and interest to its readership.
This first edition of Arbitrarily Speaking contains the ‘Toolkit for Award Writing’, published under the auspices of the International Bar Association’s Arb40 Subcommittee. Although the article is most informative, and could be a key reference for members and readers as to the proper approach to be adopted in award writing, it is – and remains – a guideline at best. It cannot replace applicable national laws or institutional rules relevant to the parties’ arbitral agreement. Such laws and rules must be complied with to ensure the enforceability of awards.
In one of the chapters of this article, great emphasis is placed on the need for comprehensive reasoning in an award and the benefits that are to be derived from that. While the structure of an award is something that can be taught and learnt by rote, the process associated with ‘reasoning’ – and the articulation thereof in the written word, in the form of the award to be made – is a skill that is highly personal to each of us. Some people are gifted with the ability to think logically – a skill that can also be taught – but the vocabulary each of us has is the product of years of experience (usually gained from hours of reading good literature). The ability to use that vocabulary thoughtfully, skilfully and wisely is also germane.
No matter how skilled one might be, this latter process is not easy, and was never going to be easy. Even someone as vastly skilled as the great British jurist Lord Denning explained as much in his book The Discipline of Law (London, Butterworths, 1979), in the first chapter under the heading ‘Command of language’ (specifically under the first topic ‘The tools of trade’ on pages 5 and 6):
“To succeed in the profession of the law, you must seek to cultivate command of language. Words are the lawyer’s tools of trade.”
The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own – at your desk or walking home – you think in words, not in symbols or numbers. When you are advising your client – in writing or by word-of-mouth – you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind upon it. Obscurity in thought inexorably leads to obscurity in language.
Sometimes you may fail – without your fault – to make yourself clear. It may be because of the infirmity of the words themselves. They may be inadequate to express the meaning which you wish to convey. They may lack the necessary precision.” (Emphasis added.)
Under the second topic ‘Acquiring skill’, also in the first chapter, Lord Denning reminds the reader on page 7:
“As a pianist practices the piano, so the lawyer should practice the use of words, both in writing and by word of mouth. Again, forgive a personal reminiscence. In chambers, if asked to advise, I took infinite pains in the writing of an opinion. I crossed out sentence after sentence. I wrote them again and again. Seek to make your opinions clear at all costs. Make them positive and definite. Not neutral or vacillating.”
Unlike Humpty Dumpty[1] (Lewis Carroll, Through the Looking-Glass, The Thames Publishing Company, London, 1955), when an arbitrator or a lawyer uses a word or words, he or she cannot subjectively choose what the word or words are to mean. The best words must be chosen carefully when writing an award to ensure clarity of thought and certainty, because once the award is published, the chosen words will be subjected to intensive scrutiny in an objective interpretive process, guided by appropriate law relative to the interpretation of documents (Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at paras [18] and [19] at 603E – 605B).
Also contained in this newly designed and user-friendly first edition of Arbitrarily Speaking is a column titled Uncle Oswald’s Q&A Forum that many readers will hopefully come to appreciate. It is authored by none other than the redoubtable Uncle Oswald, the Association’s retired resident know-it-all arbitrator, who is standing by to answer any questions you may seek answers to. The plan is that this column will become a regular feature in future editions.
Lastly, there is a segment in which some of the recent case law and developments are analysed and discussed.
Your contributions to this column would be appreciated, especially where you are aware or became aware of some interesting unreported case. In this regard, please submit your contribution to the Association’s general manager, Ms Rochelle Appleton, by email: rochelle@arbitrators.co.za.
Thank you for embarking on this new venture with us. Happy reading!
Adv Eric Dunn SC
In his discourse with Alice, Humpty Dumpty says “When I use a word … it means just what I choose it to mean – neither more nor less.”.