Abstract
When I selected the topic of procedural good faith for this lecture, I did not expect it to be as unwieldy as it proved to be. After all, good faith is a fundamental concept for every law student, and it anchors our approach to legal analysis and “thinking like a lawyer.” As counsel, our core belief is that proceedings must be conducted in good faith, and we each have a professional duty to act in good faith in arbitration.
Nonetheless, I am certain that each of you has witnessed conduct during an arbitration—by the opposite party, of course—that struck you as “not right.” We often hear “war stories” from colleagues recounting improper practices they have witnessed, which are frequently described as “guerrilla tactics.” It is conduct that is not illegal per se, as it does not breach any specific arbitration rule, but it is conduct that we know should not be permitted because it upsets the equilibrium of the process and thereby jeopardizes a fair outcome. As Professor Gaillard explained, under the rubric of abuse of process, such conduct “does not violate any hard and fast legal rule and cannot be tackled by the application of classic legal tools. Abuse of process can nonetheless cause significant prejudice to the party against whom it is aimed and can undermine the fair and orderly resolution of disputes by international arbitration.” In short, good faith is something we all instinctively recognize and endorse.
That gut reaction to such conduct is probably as accurate as any technical definition of good faith. It is impossible to find an agreed-upon definition of good faith in legal literature. Most authors describe good faith by listing its attributes. For example, good faith imports a requirement of honest dealing, acting reasonably, ensuring equality of arms, or accounting for the legitimate expectations of the other party.
All are useful examples of good faith conduct, but it is hard to call such lists a proper definition. Others define good faith by what it is not. For example, good faith has been defined as a requirement to avoid misuse of the law; not acting solely out of self-interest; not acting in an arbitrary manner; refraining from taking advantage of the opposite party; or, more broadly, avoiding conduct that defeats the purpose of fair and effective dispute resolution. Again, these are all useful guideposts, but they do not define good faith.
Not surprisingly, many authors seeking to elaborate a precise definition of good faith ultimately conclude that it is impossible to formulate, but, paraphrasing Justice Potter seeking to define obscenity in a 1964 United States Supreme Court case, “I know it when I see it.”
Included in
Business Organizations Law Commons, Commercial Law Commons, Dispute Resolution and Arbitration Commons, International Law Commons, International Trade Law Commons, Transnational Law Commons