THE ZEN OF ARBITRATION

Apart from having opposable thumbs, it is mankind’s ability to imagine powerful fictions as diverse as joint stock companies, Roman Catholicism and electronic money transfers that has made us the dominant primates on the planet.

Paradoxically, it is lawyers’ lack of imagination that tends to trap us in our own imaginary constructs.  The storied international jurist, Professor James Crawford was apt to remind his students ,when explaining the difference between monist and dualist conceptions of international law, that they will not encounter the “municipal law plane” or “the international law plane” taxiing up a runway anytime soon. A body corporate with a juristic personality is as much an incorporeal fiction, as lines of latitude and longitude on the globe. The latter are helpful to navigate a material geography, but lawyers’ stock in trade is immaterial “intersubjective realities” like money, sovereign states and corporations. These things, like the offside rule in soccer, are only made real by mutual adherence to a convention which attracts coercion if disrespected.

There is a scene in the classic anti-war movie “Dr Strangelove” which perfectly encapsulates the concrete potency which the legal fiction of a body corporate has acquired with the backing of coercion. Peter Sellers, playing a British Colonel who has been posted as aide de camp to US Airforce General Jack Ripper (who has lost his mind and unleashed an imminent nuclear attack on Russia) needs to make a pay-phone call to the White House to communicate the recall code to the President. Lacking coins, he orders a US army corporal to shoot open a drink vending machine. When the corporal balks, Sellers says “Listen to me Officer Bat Guano, if that really is your name, do you realize what it will do to your whole frame, outlook and way of life if I do not make this call?”. Corporal Guano answers “Yeah, and do you realize, that if you are wrong, you are going to be answerable to the Coca Cola Corporation?”

Hence, we speak of rules having “the force of law” , and yet the law’s utility lies not so much in its rules as in the spaces between them, wherein it has facilitated co-operation by larger and larger groups of mankind over time: the rules are merely the goal posts, it is the space between them that is the goal. But one would not exist without the other. This expression of the synchronistic relationship between rules and the gaps between them is a classically Zen characterisation of the law.

“We put thirty spokes together and call it a wheel;

But it is in the space where there is nothing that the utility of the wheel depends.

We turn clay to make a vessel;

But it is on the space where there is nothing that the utility of the vessel depends.

We pierce doors and windows to make a house;

And it is on these spaces where there is nothing that the utility of the house depends.

Therefore, just as we take advantage of what is, we should recognize the utility of what is                not”.

Zen is a product of a combination of Indian Mahayana Buddhism and Taoism, the original Chinese way of liberation. The quoted words are from the Tao Te Ching of Lao-Tzu, the 5th Century BC Chinese sage who is the father of Taoism.

CG Jung, who had a lifelong engagement with Eastern thought, coined the term “synchronicity” to describe the acausal connecting principle inherent in the poles of yin and yang which are the fundament of Eastern philosophy. Jung observed that “the synchronicity principle asserts that the terms of a meaningful coincidence are connected by simultaneity and meaning…we must conclude that beside the connection between cause and effect there is another factor in nature which expresses itself in the arrangement of events and appears to us as meaning …what that factor which appears to us as ‘meaning’ may be in itself, we have no possibility of knowing.”.

Abstract as it may seem, it is easy to overlook the effect that this difference in emphasis between cause and effect and synchronicity as between western and eastern thought has had on our respective world views. The western emphasis on cause and effect and the sense of man’s agency in the process has engendered the mythology of a creator god in the Semitic religions and a metaphysical and linguistic inability to disengage verbs from pronouns - “I think, therefore I am” - and a concept of the universe as created as an event, rather than existing as a “happening” and a ground of being to which humankind is as integral as waves are to the sea. The latter is the eastern notion with which the practice of yoga and meditation seek to reconnect adherents by switching off our left brains; that much is neurology not mysticism.

A lawyer’s spells and fictions in conjuring deemed persons from the void ought (but for our lack of imagination) make us orientalists who doubt the maxim “nihil ex nihilo fit” -nothing comes of nothing. A friend of the inestimable Alan Watts, who popularised and demystified Eastern thought in the West in the fifties and sixties, carried a business card which illustrated this with perfect Zen humour. The card read “The Null and Void Guarantee and Trust Company ‘Register your Absence with us’ - J Smith (Unrepresentative)”. Clearly, a man who knew the sound of one hand clapping.

As we enter the Asian century, the rise of China and America’s fear of its own decline produces the spectre of conflict. Kissinger disciple Graham Allinson in ‘Destined for War: Can America and China Escape Thucydides’ Trap?’ charts sixteen episodes in history of dominant powers responding to the challenge of rising powers, of which thirteen produced war. Apart from Spain overtaking Portugal in the fifteenth century the remaining two, in which conflict has been avoided, were in the aftermath of the world wars of the 20th century. As the horrors of those terrible wars fade from memory, a resolve to promote a mutual understanding of values and mores between East and West as a counterpoint to the alarming promotion of fear and distrust of “the other” by the media in each geography, has never been more acutely needed.

During 2019 (The Year of Tolerance in the UAE) I completed my Arbitration Advocacy Alphabet. My main project for 2020 (which I have dubbed The Year of Hindsight) is to share a series of pieces on ideas in Eastern thought that influence attitudes and behaviours in modern China in spheres which may affect our working lives as international lawyers, ranging from the working culture in organizations that may be our clients or their counterparties in business and dispute resolution, to jurisprudence and attitudes to the rule of law and  governing authorities. This will take us on some disparate journeys, perhaps with no obvious connection to the practice of international arbitration, unless we keep in mind that our craft is exclusively concerned with the peaceable resolution of conflicts, mainly with international and cross-cultural dimensions.

Apart from being a partner in a global law firm with many PRC clients and in which most of my colleagues are PRC nationals and/or of Chinese lineage, I claim no special expertise in my subject matter beyond curiosity and reading widely.

The modern proliferation of Confucius Institutes as a projection of Chinese “soft power” is superficially an obvious symptom of China’s rediscovery of the culture which the Cultural Revolution (1966-1976) succeeded to a remarkable degree in wiping from the hard drive of China’s collective unconscious. There had been no “home-grown” lawyers in China since the 1950s when the profession began to be reinvented in the eighties. The major preoccupation in Chinese society ever since has been wealth generation, leaving little bandwidth or incentive for most people to want to rediscover the ancient traditions on which Chinese society had functioned for generations before the Party took charge. There is also good reason to be suspicious that the Party’s primary reason for appearing to rediscover these traditions is to co-opt the top-down conformist aspects of Confucianism and emphasise the quietist aspects of its Hippy cousin, Taoism. Against this background, I suspect that many of my Chinese colleagues will not be especially familiar with my subject matter and/or will be too polite to tell me that my insights are more Confusion than Confucian, like the observations of a casual visitor from Mars.

   None of us is particularly good at anthropology in the mirror: I was only dimly self-aware enough to realise that outside observers of the recent British General Election may have thought it odd that Boris Johnson evidently saw nothing unusual in giving his election acceptance speech shoulder to shoulder with Lord Buckethead of the Monster Raving Loony Party. It made me even prouder of the eccentricities of my countrypersons than watching Lady Hale give the judgment of the Supreme Court with her Spiderwoman brooch on.

 Older folk are also not that bright at knowing what is making the younger generation tick, and I shall be fascinated to learn whether there is anything in the insight that twenty-somethings in China have been looking to these old values to fill the spiritual void created by a generation of rampant materialism, or whether this is just a projection, based on my own nostalgia for the zeitgeist of Swinging London of the sixties (when I was just old enough to regret I was too young to take proper advantage of the era of Free Love).

I wish all my friends and both my readers a happy and harmonious 2020, freed by our own inner peace from the sound of one Trump dumping.