A Commercial Man
This article was written by Mary Thomson and first published by Asian Dispute Review October 2007 and subsequently by the Society of Maritime Arbitrators, New York.
Who qualifies as a "commercial man" when appointing an arbitrator? It is not uncommon, particularly in standard form contracts in certain trades, to provide that an arbitrator must be a "commercial man" – an expression that covers both men and women. What does it take to be a "commercial man"? Can a lawyer qualify as one, for instance?
The narrow view would suggest that lawyers cannot qualify. The original intention behind the qualification was to exclude them from arbitral panels because they were thought to be less practical, more pedantic and more concerned with legal principles than with helping parties to resolve their disputes in a timely and efficient manner. Consequently, the preference has been to empanel experienced business people instead, as they are likely to be more familiar with the trade than the average lawyer and to have a greater knowledge of the background to (and the customs adopted in) the particular industry.
Such a narrow approach is, however, now unwarranted. Should otherwise knowledgeable commercial men be excluded from arbitral panels merely because they once practised as lawyers or are still currently in practice?