Arbitration: Not Litigation

You might want to check out Fali S. Nariman (e.g., Google search produces nearly 9,500 hits). Nariman was born in Rangoon, Burma in 1929 but moved with his family to India in advance of the Japanese invasion in 1940. He has had an extensive practice before the Supreme Court of India as an advocate in constitution and human rights cases. He has also been president of the Indian Bar Association, Solicitor General of India, and, over the course of the last 15 or so years, active in international commercial arbitration. Not bad for a fellow in his 81st year.

Nariman was chosen to give an “oration” by the trust created in honor of a leading judge in British colonial Jammu & Kashmir and NLU-Jodhpur was chosen as the venue. Nariman spoke to a conference hall packed with dignitary types (including a retired Chief Justice), faculty, students, and me. He demonstrated that he hasn’t lost his advocacy skills as he sharply but humorously skewered Indian judicial interference with arbitral awards while simultaneously affirming that parties have a right to choose their system of dispute resolution equal to the right to determine the other terms of their agreements.

What later struck me about Nariman’s oration, in addition to his deft mix of story, piquant humor, law, and logic that entertained such an avowed non-lawyer as my wife, was the seriousness of his argument. Back in the U.S. we regularly hear the plaintive cries for the restoration of a sense of professionalism in the Bar. But a return to professionalism as generally understood by its advocates would involve two unlikely changes in the mindset of American lawyers: restoration of belief in transcendent justice and rejection of use of law as an instrumental tool (of political, economic, or group gain, take your pick).

In 2007 my colleague Mike Schutt published Redeeming Law: Christian Calling and the Legal Profession. Among the many good points he raised, Mike observed how throughout the course of the twentieth century legal instrumentalism, the use of law to achieve social ends, replaced the classical understanding of law as transcendent and natural. This transition has robbed many practitioners of a source of meaning in law beyond manipulative service for the highest paying client. No wonder bar associations decry the decline in professionalism but seem powerless to do anything about it. Fali Nariman was thus a refreshing reminder of what the best of the legal profession has to offer.