The Substance of Process: A Shift in Emphasis?

The Substance of Process: A Shift in Emphasis?
2020-12-18

Professor Derek Auchie presents the seventh contribution to the  Centre for Commercial Law (CCL)’s blog series on “Seeing Commercial Law from Different Perspectives.” This series was launched to celebrate the University of Aberdeen’s 525 anniversary and to showcase CCL members thought-provoking standpoints on researching, teaching, or practising commercial law. Derek joined the University of Aberdeen in 2012. He launched the LLM in Dispute Resolution programme, which was the School of Law’s first online degree programme. Derek works as a part time tribunal chair on the Mental Health Tribunal for Scotland and on the First-tier Tribunal for Scotland, Health and Education Chamber. In addition to sitting on the latter Tribual, Derek is the In-House Convener for that Chamber, dealing with regular procedural decisions, advising other tribunal members, devising and organising training for judicial members and advising the Chamber President on procedure and policy issues. Derek has been appointed as an arbitrator, both as sole arbitrator and as chairman of an arbitral tribunal. He is a Fellow of the Chartered Institute of Arbitrators and a Mediator on the University's lnternal Mediation Team. He has handled over 500 judicial hearings, some involving complex factual and legal issues. Derek’s research interests include the law of evidence and dispute resolution processes (court, tribunal, arbitration mediation, expert determination, ENE) as well as the interpretation of rules and legislation.

“Process. Sounds boring? Its not. But then I would say that.  Most legal teaching, thinking and research is about substantive law. The legal rules applicable to the substance of disagreements between two (or more) legal persons. However, in commerce (as in all other areas) legal rules lead to the resolution of a tiny proportion of disputes. Most are settled before an adjudicative body gets to rule on the substantive issue. This makes process important. Process affects every dispute. 100 per cent of them.  Disputes are a waste of time. A waste of money. A waste of effort. A waste of relationships. They cause stress, anxiety, inefficiency. They are not enjoyable. There is nothing to commend them. So, every effort should be made to engineer ways to resolve them quickly and painlessly. And remember, this applies to every dispute. 100 per cent of them. Research tells us that process is important: the way in which disputes are handled enhances acceptance of the outcome, even for the losing parties in an adjudicative context. (For example, see Genn et al, Tribunals for Diverse Users, DCA Research Series 1/06, January 2006, esp pages 234-240.) Then there is the teaching of processes; the range available, and how to employ effective techniques. With the emphasis on the teaching of substantive rules, it is arguable that we could devote more time to process.  Back to my initial point. Process is interesting because it is important but also since it is about human interaction. Relationships. Communication. Fairness. Equality of arms. Being heard. These are important to every person and organisation, and they have a key role in 100 per cent of disputes.”

Our Seeing Commercial Law from Different Perspectives series resumes in the new year and runs until 20 January 2021. The next contribution to the series by Dr Titilayo Adebola is titled “Plant Variety Protection: Complexities, Conflicts and Conceptual Indeterminacies.”

Published by School of Law, University of Aberdeen

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