1. The purpose of this article is to explore whether there is scope in our legal tradition for the development of the commercial private law through the publication of arbitral awards and to consider the development thereof through the writings of academics. Can stare decisis be liberalised?
  1. One of the consequences of complex commercial cases by-passing the court system is that our common commercial private law is not growing through decisions on controversial issues and that it is becoming anaemic. If the sort of case that demands the development of the common law does not go to court an opportunity is lost to develop the common law. If the law is not continuously developed in response to new developments in commerce, industry and finance it must by necessity become obsolete and may in time wither away to the point where South African businesses may choose to have their disputes determined in terms of well-developed and up-to-date foreign law, albeit in local tribunals. Complex commercial cases are still arising and are still being determined in terms of our law, but they are determined by arbitration which does not develop the common law because arbitrators apply the law and do not develop it.
  1. As a rule arbitrators toil in private and their awards are not published. There are limited exceptions. For example, the decisions of the International Court of Arbitration of the International Chamber of Commerce (“ICC”) are sometimes published by members of the ICC Secretariat without identifying the parties involved. To explain the interpretation of its procedural rules, the ICC sometimes publishes extracts of awards and procedural orders.  See in general Thomas H Webster and Michael W Bühler Handbook of ICC Arbitration 3rd ed 1-44 and 1-45 (page 34).  There is a running battle in the literature between those who support the concept of “inherent confidentiality” of the arbitral process and those who advocate the publication of awards to establish a body of precedent that might guide other arbitrators.  Awards of the Iran-US Claims Tribunal have been comprehensively reported.  The rules of the International Centre for Dispute Resolution established by the American Arbitration Association of New York provide that, unless otherwise agreed by the parties, selected awards may be made publically available with the names of the parties and other identifying features removed.  Nigel Blackaby and Constantine Partasides Redfern and Hunter on International Arbitration 5th ed at 9.213 (page 583) refer to the increasing practice of circulating versions of awards in investment treaty arbitrations by email to practitioners and academics who are active in the field.  There are, apparently, online communities of arbitrators, lawyers and academics who exchange information and views on arbitral awards in areas such as oil, gas, energy, mining and infrastructure dispute resolution. These exchanges apply primarily to international arbitrations and there is ongoing tension between publication in the public interest versus privacy in the private interest of the parties.
  1. To repeat: the purpose of this article is to consider the possibility of assisting the growth and development of the common law by the publication of arbitral awards. The immediate retort of the naysayer to this proposal will be that arbitrators owe the public nothing, they are not officials, but holders of private mandates and they perform their mandates in secret. An award is primarily an explanation to the losing party why it lost the case — it is not a scholarly treatise. The development of the common law, or even an explanation given for the application of an old rule to a novel set of facts lies outside the remit of the arbitrator.  The sceptic will also say that whilst the musings of an arbitrator may be interesting they are ultimately irrelevant because they are just the thoughts of a private individual with no imperium in imperio.  They bind no one other than the parties immediate to the dispute.  In short, our legal system does not give any precedence to the expositions of scholars, jurists or academics on the law.  The lex lata is what the courts say the law is, the lege ferenda proposals of academics, other commentators and arbitrators are by themselves of no moment and only gain consequence if they are adopted by the courts.  These responses rely on the premise that our rules of precedent preclude everyone but a judge sitting as a judge in a case that is properly before the court from developing the law.
  1. These concerns are compelling, but I nevertheless believe that there may be scope to take a somewhat broader view of the rules of precedent and stare decisis and that our legal system is supple enough to allow arbitrators to apply old rules to new contexts and thus develop the law. I also think that there may be scope for the awards of arbitrators to be published and so to establish reports from which everyone can see new applications and developments of the law. We have a cohort of highly experienced and respected lawyers who serve as arbitrators. Moreover, seen in its proper historical perspective, our common law is not only judge-made but is also jurist-made so that it is legitimate to find our common law in the writings of jurists, whether that be in academic publications or in published awards in concrete cases.
  1. Our formal or adjectival law forms part of the Common Law legal tradition that developed in England (to which I refer when using capitals i.e. “Common Law”; when I use the lowercase “common law” I refer to the uncodified South African law, our ius gentium). Our substantive law (indeed our common law) hails from the Civil Law (also identified by capitals) that developed in continental Europe. We thus have a mixed legal tradition.  As is well-known, the opinions of jurists in the Civil Law tradition are central to the development thereof but academic treatises are historically irrelevant in the Common Law tradition. Our historical link to the Civil Law could be an argument for placing the jurist on an elevated Civilian-type plinth in our modern practise. To demonstrate this, I commence with a pedestrian overview of the differences between our two great parental systems with specific focus on the status afforded in each to the decisions of the courts and the opinions of jurists.
  1. The Common Law tradition developed in medieval England. It was later exported to the British colonies and territories across the globe. At the same time the Civil Law system developed in continental Europe from where it was exported to the New World possessions of Spain and Portugal. About 40 countries today have Common Law systems, close to 100 have Civil Law systems, about 13 have Sharia-based systems whilst about 19 have mixed Common Law and Civil Law systems and 20 have systems of mixed Common Law / Civil Law on the one side and Sharia law on the other.
  1. The Common Law is not codified. However, large tracts of law dealing with specific areas in which the state normally has a special interest (such as intellectual property, companies and insolvency) are today comprehensively codified.  Nevertheless, the Common Law, as judge-made law, not only applies where there is no code but it also applies when judges interpret statutes.  The defining feature of the Common Law is that it is constituted by judicial decisions — not legislative decisions, even when it deals with legislation.  The Common Law, being uncodified, is first and foremost based on past judicial decisions which is the application of the principle of precedent. The past judicial decisions are communicated to the wider legal community by the publication of reports of the judicial decisions. In the 1895 Harvard Law Review at 27 John Chipman Gray enquired into the history of judicial precedents (Hahlo and Kahn The South African Legal System and its Background 226 at fn 74 trenchantly summarised his findings).  The Gray article contains a magisterial overview of the development of judicial precedent from the era of Roman law in all its evolutionary stages, through the Germanic laws of the Middle Ages, Scots law and then only (at 35 onwards), the Common Law.  What he demonstrates is that judicial precedent is relatively recent — it evolved only after the printing press.  It was only in the late Elizabethan and early Jacobean eras that the law reports became a source of law.  The harbinger of law reports was Sir Edward Coke who made copious reference to his own previous judgments as Chief Justice of the Common Pleas and as Chief Justice of the Kings Bench.  He was dismissed in 1616 thanks to his decisions in the Case of Proclamations and Dr Bonham’s Case that held that the English king is subject to law and that the laws of Parliament are void should they breach common right and reason.  He lived another 18 years.  During this period he was a member of parliament, and  he was instrumental in the passage of the Petition of Right in 1628 which, together with the Magna Carta and the Bill of Rights of 1689 are the documents within which the unwritten constitution of England is woven.  He also wrote the foundational English legal treatise, his “Institutes”.  His “Reports” — proto law reports — are probably closer to the memoirs of an old judge looking back to his professional life as a judge, placing himself centre stage in his own dramas and with the benefit of hindsight papering over the rough edges of old pronouncements rather than the disaffected reportage of a modern professional court reporter.  It was only a century later, during the late 1700’s and the early 1800’s that professional and comprehensive reporting commenced.
  1. The Common Law is moreover an adversarial system and judges do not decide what the parties may place before them for decision. It is a system of party autonomy. In English law, the font of the Common Law, precedents are generally followed, but this is not an invariable rule.  Gray has argued that this shows that the English Law is the true creation of judges “for they not only make the precedents, but say when the precedents should be departed from”. The House of Lords was not strictly bound to follow its own decisions until the decision in London Street Tramways v London County Council [1891] AC 375.  Only Parliament could from then on change the law as determined by the House of Lords.  This very strict application of stare decisis was ameliorated by the Practice Statement of 1966 which enabled the House of Lords to overrule its previous decisions if they are wrong.  The power was, however, exercised sparingly by the House of Lords until its replacement by the Supreme Court. The position is the same here as Brand AJ explained in Camps Bay Ratepayers’ and Residents’ Association v Harrison 2011 4 SA 42 (CC) par [28].
  1. The Civil Law differs in every material respect from the Common Law. To begin with, it is codified in statutes that are comprehensively and continuously updated, first in draft by jurists and then promulgated by the legislatures. The judge’s role in this system is to investigate the case, establish the facts and then to apply the facts to the appropriate code.  There is no room for a judge to express his or her own views on the law or its deficiencies and the judge does not develop the law. The jurist stands in the centre of continental jurisprudence.  It is the jurist who bridges the gaps.  When confronted with a problem, the continental judge consults textbooks and scholarly articles, not the judgments of other courts. There is consequently no general system of precedent. The system is essentially inquisitorial and legal representatives of the parties have limited influence on the identification of the issues in dispute.  The jurist expounds the law, the judge applies it uncritically.
  1. The Civil Law developed out of the Ius Civile that applied to all Roman cives or citizens. The first influential codification of Roman law came in 534 when Emperor Justinian I accepted the Corpus Iuris Civilis (there had, however, been older, less influential codes, such as the Codex Theodosianus of 439).  At about the end of the first millennium the laws of the Germanic tribes were collected and became known as the Leges Barbarorum.  (See Calisse The Continental Legal History Series Vol 1 p 45.)   After a long hibernation the Corpus Iuris was rediscovered and developed in the Middle Ages, first by the Glossators of the 11th century, such as Irnerius of Bologna, then by Canon law scholars such as Durantis (“Speculator” after his Speculum Judiciale, see J C de Wet Die ou skrywers in perspektief at 69).  By the late 1200s, the academic study of the Roman law crossed the Alps from Italy to France and became the focus of the schools at Montpellier, Tolouse and Orleans. The post-Glossators then took control of the study of the law and after them it was the turn of the “Commentators” of the 14th and 15th centuries.  The job was thereafter split along national lines – insofar as there were actual nations in the Germanic part of Europe at the time. In the Netherlands the Roman law was so finely developed that it got the name Roman Dutch law. The great institutional writers, such as the internationally famous Hugo de Groot (born in 1583), brought sense and order to the law. The Roman Dutch law of the 1600s that was brought to the Cape of Good Hope was widely accepted to be the most advanced of the era.
  1. The law that applied across Europe in the 1700s was the product of private scholars. Then came the modern codes by which the continental law became synonymous. These codes were the culmination of centuries of scholarly reflection. The first codes came in the late 1700s and they proliferated after Napoleon. The Code of Joseph II of Austria was for example finalised in 1786, the Prussian Complete Territorial Code came out in 1794 and France’s Civil Code, the Code Napoleon, saw the light of day in 1804. All of these were based on the Roman Corpus Iuris and the ius gentium viz. local customary laws as developed by scholarly private jurists.
  1. The law that was brought to the Cape of Good Hope in 1652 was the uncodified Roman Dutch law of the old Dutch Republic. This was the law of the institutional writers and it was thus jurist-made and not judge-made. It stood in the continental Civil Law tradition where it was developed into the vibrant system that was world famous at the time. It was the same at the Cape as it was in the Dutch Republic (the province of Holland, to be precise). But it ceased to be developed in its country of origin when the Dutch republic was conquered by Napoleon in 1806. The Kingdom of Holland was then created with Louis Bonaparte, the third brother of the Emperor as its king.  The newly minted French Code Napoleon became the law of the new kingdom.  After Napoleon’s exile a new Dutch state was created.  In response to the clarion call of rationality of the modern era that Napoleon had heralded, the Hollanders decided to do away with their old form of unwritten, institutional law and to codify their own laws. Notwithstanding their hate for the French, they decided to retain the Code Napoleon until a new Dutch code had been drafted for the new country, which consisted of both the modern Netherlands and Belgium.  But Belgium broke away from the union in 1830, before the new code had been finalised, and the Dutch rewrote it to rid it of all Belgian influences.  The new code became law only in 1838.  From 1806 the Dutch scholars no longer concerned themselves with the uncodified Roman Dutch law, but focused on the codes. The unwritten Roman Dutch law was consequently not further developed in its country of origin.  But, that was not the case here.
  1. After the second British occupation of the Cape in 1806 it was decided to retain the uncodified Roman Dutch law as the law of the Cape. It was still based on the writings of the old Dutch authorities who had written before 1806. The interesting point is that from then on the job of keeping the Roman Dutch law relevant and up to date fell to the newly established British courts that were operating in the Common Law tradition. In English Law the laws of a conquered country continue in force until they are altered by the conqueror – see Campbell v Hall 98 ER 1045 at 1047. J C de Wet, 1958 THRHR 239, has explained that where the conquered territory was Christian, the laws of the territory remained in force but where the territory was heathen, the British settlers brought their laws (English law) with them.  The Cape being Christian it retained the Roman Dutch law.  This was vouchsafed by the Articles of Capitulation of 10 and 18 January 1806 (the commencement of the second British occupation), see Hahlo and Kahn op cit 575 fn 49.  This position was further entrenched in the First and Second Charters of Justice of 1827 and 1832, see Hahlo & Kahn op loc cit and R v Harrison & Dryburgh 1922 AD 320 at 330.
  1. Our Civil Law rules were thus developed in the Common Law manner from the beginning of the 1800s onwards.
  1. This demonstrates the resilience of our common law: It has its roots in Rome, was fused with the ius gentium of the Barbarians and modified by the old authorities, who were jurists not judges.  When the development of that law by the jurists was stymied by the codifications that were imposed by the legislature in the Netherlands, it was adapted to local conditions and developed here by judges standing in the Common Law tradition, whose decisions on the Civil Law attained the force of law through the principles of stare decisis and precedent.
  1. What does all this mean? The migration of commercial disputes away from the High Court to arbitration tribunals has left the courts with limited opportunities to develop our commercial common law. The Catch 22 is that arbitrators apply the law and do not develop it.  The consequence is that out commercial common law is not developing as it should and is falling behind the development of other legal systems.  The dilemma may be solved by liberalising the concept of stare decisis and precedent to allow for arbitral awards to participate in the development of the law.  I certainly do not propose that arbitrators should be postulated in the formal hierarchy of our court system but, as is the case in the continental legal systems, arbitral awards may be persuasive authority because they demonstrate how the law has been applied, as a matter of fact.  It demonstrates the status quo of the law and its development.  In a manner of speaking, it empirically proves what the law is at a given time.
  1. A fundamental objection to the publication of arbitral awards is that of privacy. Speaking for myself I really doubt whether this is such a major problem.  Most arbitrations running today would have been High Court actions a scant ten years ago with no privacy issues being raised.  The decision to go to arbitration today rather than litigation is not taken because the parties wish to wash their dirty laundry in private but because the parties are scared, rightly or wrongly, of the justice meted out by the courts.  There will always be some arbitrations that are by their very nature private.  However, even in those cases it should be possible to find a via media whereby the essential aspects of an award are published whilst protecting the privacy of the parties.
  1. A lot of good will flow from the publication of arbitral awards. It may cause arbitrators to think twice about the right to be wrong because patently wrong decisions will affect their marketability for future jobs.  Nothing ensures quality in adjudication more than peer scrutiny of the decision made.  The further benefit that will flow from the systematic publishing of arbitral awards is that academics will have access to large numbers of examples of the present-day application of the law in the commercial field.  They will be able to see how the law is being applied and comment on it.  They may point out errant applications of the law and all this will assist in our common law remaining a living and vibrant system, also insofar as its commercial divisions are concerned.
  1. The publication of awards could be voluntary by the parties (or their attorneys) sending the awards to a central database such as SAFLII. As a last resort, the legislature could make provision for the publication of arbitral awards through amendments of the Arbitration Act and the future International Arbitration Act.  Whether this is feasible or desirable will have to be debated.  The reportage of our High Court judgments is a matter of convention, agreement and private enterprise and not legislative compulsion.
  1. In conclusion it must be pointed out that our legislature may consider a provision such as section 69 of the present English Arbitration Act of 1998 to allow for appeals on legal points from arbitral tribunals to the High Court. It is a terrible thing for a party to lose an arbitration where the arbitrator misapplied the law.  Large commercial cases often have far-reaching consequences.  It is often said that justice does not reside in the outcome of litigation, but only in a fair process.  It is really difficult to explain that this means that arbitrators may get the law horribly wrong and that the loser must accept this outcome as long as the arbitrator followed a decent process.  Even if our legislature does not provide for law-based appeals, our common law regarding the reviewability of arbitrations on the ground of error of law may one day right the clear wrong of arbitrators having the right to be wrong, on the law that is.