The Conversation

A blog by Kysen MD Clare Rodway, capturing interesting conversations she has in the course of her work...


22 February 2017




It's always such a pleasure catching up with old friends, especially when they're as interesting company as Peter AshfordPeter and I worked together years ago when he was head of commercial dispute resolution at Cripps (then Cripps Harries Hall).  He is now Head of International Arbitration at Fox Williams. He specialises in international trade, joint venture and commercial contract disputes and has a leading reputation in alternative dispute resolution, particularly arbitration, being the author of not one but two three of the leading texts on the subject: Juris Publishing's Handbook on International Commercial Arbitration and Cambridge University Press's IBA Rules on Taking Evidence in International Arbitration and IBA Guidelines on Party Representation in International Arbitration. He sits regularly as an arbitrator.

Peter is one of the people in my career who has taught me the most about the philosophy, principles and practical mechanics of alternative dispute resolution.  You'll see from the extracts of our conversation below how effortlessly he brings complex topics to colourful life, making them easy to understand; if he hadn't become a market-leading commercial practitioner he could have had a highly successful career as a teacher I'm sure.

We reconnected recently after a gap of a few years, on the occasion of his latest book launch, for the Party Representation book.   I was keen to know why he had chosen to gravitate more and more towards a specialisation in arbitration as his career progressed, so we agreed to meet over lunch soon after to chat.  His answer surprised me:  "Arbitration gives you so much more scope to be creative."  Really?  What did he mean by this?  "You are far less constricted by rigid procedural rules compared to court litigation, which means you have the space and the licence to be imaginative about how you resolve a dispute.  You are freer to think about what's really at the heart of the issue between the parties; how best to get to the bottom of the problem; what you really need to decide the issues; how to bring the parties to a more similar perspective on the process for the issue at hand.  Also once you reach resolution, the decision of the arbitrator is generally final – there is no appeal – so the parties can put the dispute behind them and move on.  In commercial real life that can be important, especially when the parties fighting have (and want) an ongoing commercial relationship."

"Perhaps a helpful way to think about this is to consider a dispute involving perishable goods.  Let's say a cargo of oranges, shipped from South Africa to the UK.  The buyer claims they were sour by the time they arrived at the dock.  The seller denies this.  Take this issue through the traditional courts and by the time you've gone through all the procedural steps of a very long-winded process to get to the first judicial pronouncement, the oranges themselves have long since perished.  The argument quickly becomes academic.  In contrast, take the dispute to arbitration and the arbitrators have the freedom to say to the parties ‘Why don't we all just go down to the docks this afternoon, crack open a crate of those oranges, taste them for ourselves and discuss together, with the goods in front of us, how sour they are, whether all of them have been affected or only some, and make a decision on the spot on quality and what the or level of compensation would be'."  


There is a place for the rigour
s of traditional court litigation he tells me: "Arbitration and mediation are not panaceas for all disputes.  Sometimes that rigid procedure the Courts bring is just what's needed, for example if a party wants to set a precedent for a queue of similar disputes they know are waiting in the wings or there are complex fraud allegations where the full machinery of the Courts to aid investigation is useful. Also, the immutable consistency of the English court system is one of the biggest pulls for the many super-wealthy foreign litigants we now regularly see in the London commercial courts, along with the transparency of the system (which make it easy for a foreigner to navigate) and our judiciary's reputation for being one of the least corrupt in the world.  And sometimes it's important to play hardball rather than take a conciliatory approach, so a tough fight in court does the job best.  It's horses for courses – and a judgement call at the end of the day as to which approach is best although the choice of litigation or arbitration is generally taken a long time before in the underlying contract when the nature of the dispute that might emerge is unknown"

See what I mean?  He explains it all so simply.  Isn't that so often the way with those who are right at the very top of their chosen profession?



It was a most interesting discussion over lunch. What's more, for someone whose entire livelihood is about conflict, he is one of the most affable, engaging and amusing people you will ever come across in the profession - and I've known him for years, in a work as well as a lunch context. Ironic? Maybe not. Perhaps it's the whole reason he's so excellent at conflict resolution!
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Don't get me started on the Trump Administration's "Alternative Facts" PR regime. It's been interesting talking to our lawyer friends about this one, paid as they are to present only one side of an argument on behalf of clients. Are "alternative facts" just a part of life as a grown up?  Are they just an unpleasant norm in business and politics?  Their answer?  Unilaterally, a resounding "No!". @JA_Button from @SA_Law put it best when she tweeted this simple reply: "often two (or more) sides to a story but facts are facts."

The similarity between the Trump administration's Alternative Facts" and George Orwell's idea of the mutability of the past expounded so well in his iconic dystopian novel 1984, is chilling. Even more so when you learn this book, and its concepts of Double Think and Big Brother were all "inspired" by Hitler's WWII propaganda machine. Perhaps it's not so surprising then, that sales of 1984 spiked after Trump advisor Kellyanne Conway's first used the phrase "Alternative Facts".  That week 1984 rocketed to No 6 on Amazon's best-selling list.

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And it's not just Alternative facts, but "Fake News" that we have to contend with these days: the worrying new trend for websites that select, and sometimes entirely make up, stories purely for their value as "click bait" and the advertising this attracts. As I write this, yet another story is breaking about the problem of big brands such as Mercedes and Waitrose inadvertently funding fake news, their adverts appearing right next to highly dubious, even offensive, content.  The problem is the way current algorithms for placing online adverts work, targeting platforms with the highest click-rates and, as The Times Alexi Mostrous puts it, "the internet's inability to prioritise fact over fiction". (You can read his full article here if you have a subscription to The Times)

There is good news though: Parliament (The Culture, Media & Sport Committee) is launching an inquiry to address the growing problem of fake news. Amongst other things the inquiry will explore what counts as 'fake news'; where the boundary is between biased but legitimate commentary, versus propaganda and lies; the impact fake news has on the public's understanding of the world; the extent to which the way advertising is sold has encouraged the growth of fake news, eg through the pull of fake news to attract more hits to websites; the practicalities and ethics of using computer-generated algorithms to root out fake news from genuine reporting and whether/how this amounts to censorship.  If you're interested, you have until 3 March to make your views known

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