I don’t like how we use the term guer­rilla tac­tics in inter­na­tion­al arbit­ra­tion. Refer­ring to guer­rilla dis­ap­prov­ingly implies meth­ods of tra­di­tion­al war­fare are alright. Artil­lery or old-school tac­tic­al form­a­tions – okay. Sneaky ambushes or hit-and-run attacks – not okay.

Japanese premises at night, approached by ninjas
The place of the hear­ing at night

But both are meth­ods of war­fare. They aim at killing the oppon­ent, fig­ur­at­ively or even literally.

Any­one who knows me will know I’m all for intense arguing. Off with the gloves if we must! But I won­der if this is how we want to talk, and thus think, of leg­al dis­pute resolution.

Acts of War…

We can either aggro up our lan­guage and speak of dis­pute res­ol­u­tion in terms of war. But if we do this, there’s no val­id reas­on to approve of one meth­od of war­fare but to dis­ap­prove of the oth­er. If tra­di­tion­al war­fare is okay, then guer­rilla tac­tics must be okay as well.

Or we tone down our lan­guage and stop refer­ring to reg­u­lar dis­pute res­ol­u­tion as war­fare alto­geth­er. If we do that, neither tra­di­tion­al nor guer­rilla war­fare is jus­ti­fied. Not only would this fit bet­ter into the (argu­ably) more civ­il­ised envir­on­ment of leg­al dis­pute res­ol­u­tion – for those of us who are so inclined. It would also allow us to call a spade a spade more poin­tedly when we look at the wide range of con­dem­nable con­duct that does exist in arbitration.

From bor­der­line mis­con­duct to petty crime. From there, via big crime, to organ­ised crime – the oth­er arbit­ra­tion mafia. And fur­ther on to guer­rilla tac­tics and even full-blown arbit­ra­tion war­fare – per­haps only com­mit­table by states?

Ana­lo­gies are bet­ter when they’re coher­ent anyway.

The Things We Talk About over Wine

Thoughts on my way home from a CIArb talk with Rashda Rana SC on guer­rilla tac­tics in inter­na­tion­al arbit­ra­tion tonight. This is why I’m a mem­ber of this insti­tute. Superb speech, very insight­ful. Thank you very much, Rashda!

(Pic­ture cred­it: Klaus Pil­lon)