I don’t like how we use the term guerrilla tactics in international arbitration. Referring to guerrilla disapprovingly implies methods of traditional warfare are alright. Artillery or old-school tactical formations – okay. Sneaky ambushes or hit-and-run attacks – not okay.
But both are methods of warfare. They aim at killing the opponent, figuratively or even literally.
Anyone who knows me will know I’m all for intense arguing. Off with the gloves if we must! But I wonder if this is how we want to talk, and thus think, of legal dispute resolution.
Acts of War…
We can either aggro up our language and speak of dispute resolution in terms of war. But if we do this, there’s no valid reason to approve of one method of warfare but to disapprove of the other. If traditional warfare is okay, then guerrilla tactics must be okay as well.
…Or Legal Battle
Or we tone down our language and stop referring to regular dispute resolution as warfare altogether. If we do that, neither traditional nor guerrilla warfare is justified. Not only would this fit better into the (arguably) more civilised environment of legal dispute resolution – for those of us who are so inclined. It would also allow us to call a spade a spade more pointedly when we look at the wide range of condemnable conduct that does exist in arbitration.
From borderline misconduct to petty crime. From there, via big crime, to organised crime – the other arbitration mafia. And further on to guerrilla tactics and even full-blown arbitration warfare – perhaps only committable by states?
Analogies are better when they’re coherent anyway.
The Things We Talk About over Wine
Thoughts on my way home from a CIArb talk with Rashda Rana SC on guerrilla tactics in international arbitration tonight. This is why I’m a member of this institute. Superb speech, very insightful. Thank you very much, Rashda!
(Picture credit: Klaus Pillon)