“Alternative Dispute Resolution matters”: James Dauris

Following is the speech delivered at the launch of the Sri Lanka branch of the Chartered Institute of Arbitrators by British High Commissioner to Sri Lanka James Dauris on Wednesday 31 July at the Galle Face Hotel

It is a pleasure to be with you tonight at this, the launch of the Sri Lanka branch of the Chartered Institute of Arbitrators. It is a pleasure for a number of reasons. Here are three: 

First, because Alternative Dispute Resolution matters. Indeed, it is a vital component of any well-functioning justice system, and its place is even more important when the justice system in a country is not always functioning as well as it might.

Second, because the Chartered Institute of Arbitrators is not just good, but rather is ‘the’ leading qualifications and professional body for dispute avoidance and dispute resolution in the world. It brings 16,000 practitioners together, across more than 130 countries. The Sri Lankan branch we are meeting this evening to celebrate the launch of becomes the Institute’s 40th branch worldwide. 

And third, because having a branch of the Chartered Institute here in Sri Lanka adds another page to the impressive portfolio of relationships that Sri Lanka and the UK enjoy through professional organisations, across education much more broadly, and through much valued links between our legal professions and systems.

As I say, Alternative Dispute Resolution matters. It is there to help people and organisations avoid, manage and resolve conflict. When it is working well it provides quick, confidential and cost effective methods of dispute resolution and dispute avoidance for civil and commercial cases. It provides an important alternative to litigation through the courts.

The creation of a Sri Lanka branch of the Chartered Institute is an exciting step for everyone involved to be taking. With effective leadership your branch will, I am sure, quickly develop the reputation and expertise it needs to engage with government, advise on policy, and help lead and shape policy debates. And I wish you well with inspiring and cultivating capable young arbitrators, adjudicators and mediators in Sri Lanka. I understand that the Chartered Institute of Arbitrators is especially interested in developing its younger members. As well as having 16,000 members, it has almost 5,000 student members. This bodes well for younger professionals in the legal, construction and engineering fields who will be looking to benefit from new professional opportunities as the Sri Lankan economy develops.

Ladies and gentlemen, during my more than four years as the UK’s High Commissioner to Sri Lanka I have spoken many times about the part that businesses and businessmen need to play in the development of an environment that is more favourable to doing business here. Though I am myself a lawyer by training, I have not spoken about the specific part that lawyers need to play. I’m undecided whether it’s a case of once a lawyer, always a lawyer, or whether I’m a former lawyer. Either way, my colleagues identify an element of the lawyer in me often enough and, if I’m not a lawyer now, I certainly was one once. I don’t usually talk about lawyers – not that we aren’t interesting. But I’d like to do so today. 

During my more than four years as the UK’s High Commissioner to Sri Lanka I have spoken many times about the part that businesses and businessmen need to play in the development of an environment that is more favourable to doing business here. Though I am myself a lawyer by training, I have not spoken about the specific part that lawyers need to play. I’m undecided whether it’s a case of once a lawyer, always a lawyer, or whether I’m a former lawyer

Allow me to share a joke with you, told to me a little while ago by an eminent President’s Counsel. The son and daughter of two eminent Sri Lankan lawyers had become engaged. Their fathers are sitting down together talking about the wedding and the conversation comes to the difficult issue of dowry. “So, about the dowry”, the groom’s father says. The bride’s father pauses for a while before replying carefully, “I will give you six of my most profitable land law cases.”

The point of course is not only that in Sri Lanka land law cases often take a very long time to resolve, but that they can be very lucrative … for the lawyers, that is.

On 15 June 1215, 804 years ago, King John of England famously agreed to a great charter of rights, the Magna Carta. Clause 40 of this iconic document reads:“To no one will we sell, to no one will we refuse or delay, right or justice.” These rights had been formulated before then, and have been formulated time and again in the centuries since. Take the commitment not to delay justice and compare the more modern legal maxims “Justice delayed is justice denied” and “To delay justice is injustice”. Acceptance of the centuries old wisdom that justice should not be held back unnecessarily runs across legal systems around the world today. 

A few days ago I was asked to speak about market liberalisation at an event organised by the Ceylon Chamber of Commerce. I made the point that, acting together, business voices have the power to be a formidable force for good practice and for change. And I suggested that business leaders in positions of particular influence or authority have a special responsibility, as and when the occasion demands, to put their own and their companies’ immediate interests to one side in order to support and advance the important cause of free trade in a friendly business environment in Sri Lanka.

I’d like to suggest that, just as Sri Lanka needs it businessmen to support and advance the cause of free trade in a friendly business environment, so too the country needs its practising lawyers, its judges and its magistrates, all to play their parts in ensuring that the administration of justice is dependable and timely, and that it is neither unnecessarily complex nor unnecessarily expensive.And it needs them to support change, as and when it is needed. 

Lots of countries have found that reform of court proceedings has also been important in the field of arbitration, particularly when it comes to the expeditious enforcement of arbitral awards. With its network of experienced practitioners the Chartered Institute of Arbitrators is well placed to offer advice on best arbitration practices and procedures. I think many of you will hold the view that changes in litigation practices will serve the cause of justice in Sri Lanka well

To the lawyers among you, as a group you and your peers have the power and authority to be a force for best practice, to encourage greater efficiencies in court processes and good case management, and to help advance judicial and legal process reforms that are needed. In short you have the power and authority to help ensure that good, honest justice is neither refused nor delayed, to take the phrase used in the Magna Carta. Equally lawyers and judges can be and, I am regularly told, often are, the causes of delays that do not serve the best interests of their clients or those in their courts, and do not advance the speedy and proper administration of justice.

During my four years here people have shared their frustrations with me time and again about delays in trials. One party’s lawyer asks for a hearing to be postponed; later the other side’s lawyer does so. Presiding judges and magistrates go along with these requests. Delay follows delay, cases drag on, costs mount, and the court system is blocked with cases making slow progress. I hear this not just from frustrated businessmen but also from ordinary people on the street. Nobody here, I think, would want to stand up and argue that this is how it ought to be. 

Alternative Dispute Resolution matters. It is there to help people and organisations avoid, manage and resolve conflict. When it is working well it provides quick, confidential and cost effective methods of dispute resolution and dispute avoidance for civil and commercial cases. It provides an important alternative to litigation through the courts

The challenge of reforming the way that courts do their business is certainly not unique to Sri Lanka. We have had our own serious problems in the UK and I hope a short bit of background will be interesting at this point. Twenty five years ago Lord Woolf was first commissioned to write his Access to Justice reports, which led to new Civil Procedure Rules being published in 1999.In his report, Lord Woolf concluded that our system of civil justice in England and Wales was too slow, too expensive, too complex and too inaccessible. He proposed reforms, objectives of which were to ensure that the parties are on an equal footing; to save expense; and to ensure that cases are dealt with expeditiously, fairly and in a manner appropriate to their nature.

The single biggest change the rules made was to shift the initiative in the conduct of litigation from litigants to judges, and to alter the traditional role of the court away from merely adjudicating on whatever the parties present to a responsibility to actively manage cases.

Most practitioners regard the changes as a success, since they have provided a clearer structure to litigation, greater openness and have made settlements easier to achieve. The number of claims issued has dropped, allowing the courts more time to deal with those that do come before them. Nevertheless, as with any such fundamental changes, the picture of success is qualified. 

Business leaders in positions of particular influence or authority have a special responsibility, as and when the occasion demands, to put their own and their companies’ immediate interests to one side in order to support and advance the important cause of free trade in a friendly business environment in Sri Lanka. I’d like to suggest that, just as Sri Lanka needs it businessmen to support and advance the cause of free trade in a friendly business environment, so too the country needs its practising lawyers, its judges and its magistrates, all to play their parts in ensuring that the administration of justice is dependable and timely, and that it is neither unnecessarily complex nor unnecessarily expensive. And it needs them to support change, as and when it is needed

In the context of this evening’s event it is worth noting that the decrease in the number of claims commenced can in part also be attributed to the rise of alternative dispute resolution, a development that has been widely welcomed for offering litigants easier access to the quickest and often most appropriate method of resolving their dispute.

Lots of countries have found that reform of court proceedings has also been important in the field of arbitration, particularly when it comes to the expeditious enforcement of arbitral awards. With its network of experienced practitioners the Chartered Institute of Arbitrators is well placed to offer advice on best arbitration practices and procedures.

I think many of you will hold the view that changes in litigation practices will serve the cause of justice in Sri Lanka well. I am pleased that, through the High Commission, we have had opportunities to share our own recent experience of court process and case management reform with stakeholders here in Sri Lanka. Minister, thank you for your support for this. I wish everyone involved the success and the support this important work deserves.

I would like to end where I began. No country’s court procedures will ever be perfect. Meanwhile choice will almost always be a good thing. Alternative Dispute Resolution is a vital component of any well-functioning justice system. I share the hope and ambition of so many people here this evening that the setting up of the Sri Lanka Branch of the Chartered Institute of Arbitrators will advance the place of Alternative Dispute Resolution in Sri Lanka. I share your hope too that, in turn, this will help the country to achieve its goals of becoming a more attractive and easier place to do business; more successful at attracting investment; and give it fairer, faster, better value dispute avoidance and dispute management mechanisms. 

I close wishing the Sri Lanka branch of the Chartered Institute every success. Thank you.