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.