The Principle of Equal Treatment

By Delilah van Tol

Justice is not simple equality,

but equal treatment of the equal and unequal treatment of the unequal

- Socrates [1]               

INTRODUCTION

ADR aims to end up with an agreement all parties are mostly satisfied with. All parties must tell their story, wishes and must be heard by all parties concerned and be treated equally. In this blog post, we will elaborate on the importance of The Principle of Equal Treatment in ADR and if this principle is effective in practice.

THE PRINCIPLE OF EQUAL TREATMENT

The Principle of Equal Treatment establishes that all people have the right to receive the same treatment and not be discriminated against based on age, disability, nationality, race, and religion.[2] This principle has a rich history and has been linked to the principle of a fair trial.[3] Nevertheless, it goes all the way back to 1215, the Magna Carta Libertatum. It is said that The Magna Carta has “moved legal institutions across the globe closer to the ideal of equal justice under law.” [4] Therefore, the Magna Carta originating is shown in the Principle of Equal Treatment as it requires that all people be treated equally before the law, without discrimination.[5]  Some might argue that The Principle of Equality and non-discrimination, which requires those in equal circumstances are dealt with equally in law and practice, might be more suitable.[6] However, not all of the distinctions and differences will lead to discrimination as decided by the Inter-American Court.[7]

ALTERNATIVE DISPUTE RESOLUTION

An example of applying this principle in ADR and also a fundamental step in the arbitral process is the constitution of the arbitral tribunal.[8] With equal treatment, the parties have the autonomy to design their own mechanisms regarding the constitutions.[9] If parties cannot agree, the default mechanism for tribunal constitution is also premised on party equality.[10] This will mostly lead to a joint appointment by the parties of a sole arbitrator.[11] Each party has the right to appoint one arbitrator, and these two arbitrators will appoint the third arbitrator.[12] This process has been written down in Article 12 of the International Chamber of Commerce Rules of Arbitration in 2021.[13] This article does state that no situation of unequal treatment should arise. The ICC rules define and regulate the management of cases received by the International Court of Arbitration. [14]

CONCLUSION

Thus, Equal Treatment is of great importance in ADR. Nevertheless, should we always be careful that treating people equally might cause an unequal situation? As Socrates said; Justice is not simple equality, but equal treatment of the equal and unequal treatment of the unequal.[15]

[1] P. Kreeft, The Unaborted Socrates: A Dramatic Debate on the Issues Surrounding Abortion (Illinois, InterVarsity Press, 1983), 147

[2] EurWORK, ‘Equal treatment’ [03-12-2019] https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/equal-treatment > Accessed 23-12-2020

[3] Scherer, Maxi and Prasad, Dharshini and Prokic, Dina, The Principle of Equal Treatment in International Arbitration (September 3, 2018). Available at SSRN: https://ssrn.com/abstract=3377237 or http://dx.doi.org/10.2139/ssrn.3377237 > Accessed 23-12-2020

[4] V. R. Johnson, ‘The Magna Carta and the Beginning of Modern Legal Thought’, Mississippi Law Journal, 85(3) (2016), 640.

[5] Icelandic Human Rights Centre, ‘The Right to Equality and Non-Discrimination’ [2020]https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-equality-and-non-discrimination > Accessed 14-01-2021

[6] Ibid.

[7] Ibid.

[8] Scherer, Maxi and Prasad, Dharshini and Prokic, Dina, The Principle of Equal Treatment in International Arbitration (September 3, 2018). Available at SSRN: https://ssrn.com/abstract=3377237 or http://dx.doi.org/10.2139/ssrn.3377237 > Accessed 14-01-2021

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] International Chamber of Commerce Rules of Arbitration 2021, Article 12

[14] International Chamber of Commerce Rules of Arbitration, Rules 2021, https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/ > Accessed 14-01-2021

[15] P. Kreeft, The Unaborted Socrates: A Dramatic Debate on the Issues Surrounding Abortion (Illinois, InterVarsity Press, 1983), 147