The key messages of the speech by Chief Justice Sundaresh Menon at the 36th Annual Lecture of the School of International Arbitration in Dispute Resolution on 30 November 2021 are:
1. The procedural framework of a legal system and the substance of the law are inextricably linked. The best substantive rights and rules will prove hollow without an accessible and effective set of procedures through which they may be realised.
2. The procedural architecture of our justice system has become its weakest link. This is a cause for concern because instead of serving as the gateway to justice, procedure has in some respects become the bolted gate that sometimes thwarts the very purpose for which the legal system was conceived and designed.
3. A hierarchy of norms might help guide our thinking about procedure. First, fairness is the foundational norm and is key in ensuring a sustainable legal system grounded in a strong sense of legitimacy and popular support. Second, there are three broad second-order principles: (a) contextuality, which means that the process instituted for a dispute should fit the size, nature and complexity of the dispute; (b) proportionality, which envisages that the complexity of the process must bear a reasonable relation to the complexity of the dispute; and (c) accessibility, to ensure that the procedural architecture of our legal systems facilitate effective access by members of the public. Third, in particular situations, we may also have recourse to certain specific procedural norms, such as certainty, transparency, or finality, which are third-order considerations.
4. We need to dedicate resources to the review and reform of procedures and do so with urgency. This is so because of the growing global inequality that poses problems for equal access to justice, the change in the identity of players involved in the justice landscape, including the sharp rise in the number of litigants-in-persons, as well as the “information explosion” occasioned by the digital revolution. If not well managed, these will all cause a significant strain on our justice system.
5. In ascertaining the shape of future procedural reform, we should think carefully about how the hierarchy of procedural norms may be applied. We should develop differentiated models of justice for different contexts. We should also prioritise proportionate solutions that bear a sensible relation to the complexity of a case and the quantum at stake. Further, we must strive to simplify our rules and frameworks to the greatest extent possible, so that they do not themselves become insurmountable barriers of entry to the justice system. In the context of arbitration, institutions might consider cheaper modes of resolution for small-value claims, so that arbitration is not viewed as an exclusive domain for the rich.
6. If we are willing to reimagine our procedural architectures in this way, each field of dispute resolution – arbitration, commercial courts, and other fora focusing on specific areas – can devise new procedural paradigms that are fair, proportionate, accessible, and compatible with the unique values and interests that are relevant to that field.
The full speech can be found here (PDF, 313 KB) as well as in video format.