*/
CURRICULUM VITAE
Sir Bernard Eder practised as a barrister for almost 35 years (between 1976 and 2010) specialising in commercial litigation and international arbitration. In 1991, he was awarded Silk. During his practice at the English Bar, he acted as counsel in over 100 reported cases (including in the Commercial Court, Court of Appeal, House of Lords and the Privy Council) and over 200 international arbitrations. In 2011, he was appointed a judge of the High Court of England and Wales. He resigned from the Bench in April 2015. During his time as a High Court judge, he sat mainly in the Commercial Court in London. He continues to sit in the Commercial Court from time to time and has also rejoined Essex Court Chambers as an arbitrator/mediator. In May 2015, he was appointed an International Judge of the Singapore International Commercial Court.
Is there any aspect about sitting as a judge that you miss – or don’t miss?
It is a great privilege being a judge. I miss most the transparency. As a judge, you generally sit in an open court. Anyone can come in and see what is happening. You work in a public arena. Judgments are generally made available online and often subjected to close analysis, not only by the Court of Appeal but by other lawyers throughout the world. In one case, I was criticised by the Court of Appeal for my grammar when I used the subjunctive rather than the optative! It was said that I fell into error but my judgment was upheld. In many cases (certainly in the Commercial Court) you are often dealing with difficult questions of law. That challenge and the possibility of developing the common law are always exciting.
Has your transition to arbitrator posed any fresh challenges?
Managing a diary is certainly the biggest challenge. I think it is important to ensure that arbitrations are managed efficiently and dealt with within a reasonable time. Trying to achieve that aim with a panel of arbitrators is often extremely difficult.
In a survey,* 90% of the respondents said that international arbitration was their preferred DR mechanism – why do you think it is perceived as such an effective mechanism for business?
It has sometimes been said that arbitration is quicker and cheaper. But I do not think that is true anymore – if it ever has been true. I think there are four main reasons for such perception. First, the ability to choose at least one member of the tribunal is seen as an advantage. Second, there is a perception that arbitration is more ‘commercial’ and less formal than court litigation. Third, there is, at least generally, a strong preference for ‘finality’ and most modern institutional rules exclude any right of appeal. Fourth, arbitration is ‘confidential’ – although what this actually means is a matter of some debate.
* International Arbitration Survey ‘Improvements and Innovations in International Arbitration’ (White and Case and Queen Mary, London University, 2015)
In the same survey, one of the worst features of arbitration was perceived as a ‘lack of insight into an arbitrator’s efficiency’ and a recurring theme was the need for a higher degree of accountability. What do you think might be done to counter this perception?
I do not agree with this apparent perception. Most lawyers involved in international arbitration have a very keen sense of which arbitrators are ‘efficient’. It is true that with a three-member panel, it may not be possible to identify the particular ‘culprit(s)’, but generally it is not difficult to identify the source of inefficiency. I know of various plans to publish tables concerning the efficiency of individual arbitrators. I think these plans are generally flawed for a host of reasons. At the end of the day, the responsibility lies with those involved in advising who to appoint.
How would you like to see the arbitration landscape develop?
This is a difficult question. My own view is that arbitrators need to be more robust – plainly the arbitration must be conducted fairly but generally speaking I am in favour of tighter deadlines. I think that is what parties generally want. There is much discussion at the moment about the relationship between the courts and arbitrations. For example, the Lord Chief Justice has suggested that consideration be given to amending s 69 of the Arbitration Act 1996 to make it easier to appeal. I am very much against any such change – as I said in my recent speech to the London branch of the CIArb. In broad terms, I think the 1996 Act was – and remains – a very good piece of legislation. Any possible changes I would have in mind would be relatively minor.
I do think that one of the problems (which the LCJ highlights) is that many cases which previously went to court are now going to arbitration – and because of the ‘confidentiality’ rule, this means that many cases are decided behind closed doors. On one view, the result is to stifle the development of English law. It is not easy to resolve this problem, particularly if that is what disputants want to do. One possible answer may be to encourage the publication of awards. But this would need the agreement of the parties.
Outside London, do you have a preferred arbitral seat/centre – and why?
Singapore (SIAC). Its new Rules are up to date – and it’s incredibly efficient.
What qualities do you think make a good arbitrator?
Oh dear. The list is endless. Independence. Intellectual rigour. Patience. An ability to listen and, if appropriate, to change one’s mind. Efficiency...
What tips would you give counsel appearing in arbitrations?
Brevity is counsel’s most powerful weapon – in all situations, arbitration or litigation. ‘If it is long it is wrong’ is not a bad general rule – although there are, of course, exceptions.
What advice would you give to a senior junior/QC who wishes to sit as an arbitrator?
Be brave – and bear in mind the qualities referred to above which I think make a good arbitrator.
CURRICULUM VITAE
Sir Bernard Eder practised as a barrister for almost 35 years (between 1976 and 2010) specialising in commercial litigation and international arbitration. In 1991, he was awarded Silk. During his practice at the English Bar, he acted as counsel in over 100 reported cases (including in the Commercial Court, Court of Appeal, House of Lords and the Privy Council) and over 200 international arbitrations. In 2011, he was appointed a judge of the High Court of England and Wales. He resigned from the Bench in April 2015. During his time as a High Court judge, he sat mainly in the Commercial Court in London. He continues to sit in the Commercial Court from time to time and has also rejoined Essex Court Chambers as an arbitrator/mediator. In May 2015, he was appointed an International Judge of the Singapore International Commercial Court.
Is there any aspect about sitting as a judge that you miss – or don’t miss?
It is a great privilege being a judge. I miss most the transparency. As a judge, you generally sit in an open court. Anyone can come in and see what is happening. You work in a public arena. Judgments are generally made available online and often subjected to close analysis, not only by the Court of Appeal but by other lawyers throughout the world. In one case, I was criticised by the Court of Appeal for my grammar when I used the subjunctive rather than the optative! It was said that I fell into error but my judgment was upheld. In many cases (certainly in the Commercial Court) you are often dealing with difficult questions of law. That challenge and the possibility of developing the common law are always exciting.
Has your transition to arbitrator posed any fresh challenges?
Managing a diary is certainly the biggest challenge. I think it is important to ensure that arbitrations are managed efficiently and dealt with within a reasonable time. Trying to achieve that aim with a panel of arbitrators is often extremely difficult.
In a survey,* 90% of the respondents said that international arbitration was their preferred DR mechanism – why do you think it is perceived as such an effective mechanism for business?
It has sometimes been said that arbitration is quicker and cheaper. But I do not think that is true anymore – if it ever has been true. I think there are four main reasons for such perception. First, the ability to choose at least one member of the tribunal is seen as an advantage. Second, there is a perception that arbitration is more ‘commercial’ and less formal than court litigation. Third, there is, at least generally, a strong preference for ‘finality’ and most modern institutional rules exclude any right of appeal. Fourth, arbitration is ‘confidential’ – although what this actually means is a matter of some debate.
* International Arbitration Survey ‘Improvements and Innovations in International Arbitration’ (White and Case and Queen Mary, London University, 2015)
In the same survey, one of the worst features of arbitration was perceived as a ‘lack of insight into an arbitrator’s efficiency’ and a recurring theme was the need for a higher degree of accountability. What do you think might be done to counter this perception?
I do not agree with this apparent perception. Most lawyers involved in international arbitration have a very keen sense of which arbitrators are ‘efficient’. It is true that with a three-member panel, it may not be possible to identify the particular ‘culprit(s)’, but generally it is not difficult to identify the source of inefficiency. I know of various plans to publish tables concerning the efficiency of individual arbitrators. I think these plans are generally flawed for a host of reasons. At the end of the day, the responsibility lies with those involved in advising who to appoint.
How would you like to see the arbitration landscape develop?
This is a difficult question. My own view is that arbitrators need to be more robust – plainly the arbitration must be conducted fairly but generally speaking I am in favour of tighter deadlines. I think that is what parties generally want. There is much discussion at the moment about the relationship between the courts and arbitrations. For example, the Lord Chief Justice has suggested that consideration be given to amending s 69 of the Arbitration Act 1996 to make it easier to appeal. I am very much against any such change – as I said in my recent speech to the London branch of the CIArb. In broad terms, I think the 1996 Act was – and remains – a very good piece of legislation. Any possible changes I would have in mind would be relatively minor.
I do think that one of the problems (which the LCJ highlights) is that many cases which previously went to court are now going to arbitration – and because of the ‘confidentiality’ rule, this means that many cases are decided behind closed doors. On one view, the result is to stifle the development of English law. It is not easy to resolve this problem, particularly if that is what disputants want to do. One possible answer may be to encourage the publication of awards. But this would need the agreement of the parties.
Outside London, do you have a preferred arbitral seat/centre – and why?
Singapore (SIAC). Its new Rules are up to date – and it’s incredibly efficient.
What qualities do you think make a good arbitrator?
Oh dear. The list is endless. Independence. Intellectual rigour. Patience. An ability to listen and, if appropriate, to change one’s mind. Efficiency...
What tips would you give counsel appearing in arbitrations?
Brevity is counsel’s most powerful weapon – in all situations, arbitration or litigation. ‘If it is long it is wrong’ is not a bad general rule – although there are, of course, exceptions.
What advice would you give to a senior junior/QC who wishes to sit as an arbitrator?
Be brave – and bear in mind the qualities referred to above which I think make a good arbitrator.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
Creating advocacy opportunities for juniors is now the expectation but not always easy to put into effect. Tom Mitcheson KC distils developing best practice from the Patents Court initiative already bearing fruit
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
The long-running fee-paid judicial pensions saga continues. The current cut-off date for giving notice of election to join FPJPS is 31 March 2024, and that date now gives rise to a serious problem, warns HH John Platt