Abstract
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.
| Original language | English (US) |
|---|---|
| Pages (from-to) | 615-638 |
| Number of pages | 24 |
| Journal | Arbitration International |
| Volume | 30 |
| Issue number | 4 |
| DOIs | |
| State | Published - Dec 1 2014 |
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ASJC Scopus subject areas
- Law
- Business and International Management
Cite this
Metaphors, maxims, and other mischief the freshfields arbitration lecture. / Paulsson, Jan.
In: Arbitration International, Vol. 30, No. 4, 01.12.2014, p. 615-638.Research output: Contribution to journal › Article
}
TY - JOUR
T1 - Metaphors, maxims, and other mischief the freshfields arbitration lecture
AU - Paulsson, Jan
PY - 2014/12/1
Y1 - 2014/12/1
N2 - 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.
AB - 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.
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U2 - 10.1093/arbitration/30.4.615
DO - 10.1093/arbitration/30.4.615
M3 - Article
AN - SCOPUS:85044332432
VL - 30
SP - 615
EP - 638
JO - Arbitration International
JF - Arbitration International
SN - 0957-0411
IS - 4
ER -