The history of human civilisation can be told through metal smelting, from the Copper to the Bronze to the Iron Age, and onwards. And, since civilisations are communities and economies, it can also be told through the metals trade. And the history of trade is told, at least partly, through trade disputes.
The Minor Metals Trade Association is no stranger to these, and its membership is fortunate to include accredited inspection, analytical and assaying companies. It is also why the MMTA offers both long-form and short-form arbitration.
As MMTA director George Mingay, chair of the Arbitration and Mediation Committee explains: “In common with many trade associations the MMTA offers two tiers of formal arbitration rules. The first is the short form procedure which applies where an MMTA arbitration clause is used and the maximum value of the claim is USD $250,000 or less (exclusive of interest and costs) or such other amount as has been agreed in writing by the parties. The short form procedure sets out a narrower process with page limits on documentation and the matter will usually be decided without a hearing by a sole arbitrator. While short reasons for any Award will be given, the parties have contracted out of the right to appeal on points of law under s.69 of the Arbitration Act to the English Courts. The short form rules are designed to provide a swift, proportionate and final outcome for the parties.
The standard or long form procedure will cover disputes of a higher value and just some of the key differences are that they do not contain the same limitations on documentation, that the tribunal may consist of one or three arbitrators and an Award with reasons will be issued. Prior to the commencement of arbitration proceedings, the parties are strongly advised, but not obliged, to attempt to settle the dispute through a conciliation or mediation procedure offered by the MMTA.”
Contrary to its name, long-form arbitration need not need take millennia to settle. But sometimes you wonder…
Rifling through old files, the MMTA’s North American director Noah Lehrmann came across a photograph he had taken of some ancient clay tablets. These tablets, on display at the British Museum1 , had been excavated from the city of Ur, the hub of trade in Mesopotamia, located in what is now Iraq. The tablets transpired to be a cuneiform letter from the Babylonian era, complaining that a supplier had failed to deliver the proper grade of metal on a contract from 1750 BC.
We can only hope that some 4,000 years later, the arbitration on this case has been completed.
A look into the British Museum’s record took us on a journey to the source. We owe the following original translation of the very extensive complaint (lest we say a rant) to Leo Oppenheim and his book, Letters from Mesopotamia 2.
The letter is from a gentleman called Nanni to a trader by the name of El-Nāșir. A big 18th century BC copper player in Ur,
El-Nāșir was a member of a merchants’ guild based in Dalmun (a.k.a. Telmun), in what is now Bahrain. Its members were called Alik Tilmun (literally “he who goes to Telmun”). But while El-Nāșir conducted his export and import business from his offshore office on Bahrain Island in the Gulf, letters of complaint piled up at his home on the mainland, in Ur.
The loot of cuneiform tablets found at his house by 20th century archaeologists gave them little clue as to whether
El-Nāșir ever bothered to answer any of these letters. Unlike the MMTA, arbitration does not appear to have been a service offered by the Alik Tilmun in the 18th century BC. And even Alfred H Knight, the veteran provider of assaying and quality inspection services, was only founded in the 19th century AD.
The unfortunate counterparty, Nanni, was aggrieved enough to get his scribe, the Babylonian equivalent of a secretary, to cover both sides of the tablets in dense cuneiform. And he gets right to the heart of the matter:
“When you came, you said to me as follows, “I will give Gimil-Sin (when he comes) fine quality copper ingots.” You left then but you did not do what you promised me. You put ingots which were not good before my messenger (Șīt-Sin) and said, “If you want to take them, take them, if you do not want to take them, go away!”
Deeply disappointed as he is by the off-spec copper, Nanni is even more outraged by El-Nāșir’s offhand behaviour. This, as he proceeds to state at length, breaches a fundamental etiquette among gentlemen traders:
“What do you take me for, that you treat somebody like me with such contempt? I have sent as messengers gentlemen like ourselves to collect the bag with my money (deposited with you), but you have treated me with contempt by sending them back to me empty-handed several times, and that through enemy territory.”
Is there anyone among the merchants who trade with Telmun who has treated me in this way? You alone treat my messenger with contempt!
“On account of that one (trifling) mina of silver which I owe you, you feel free to speak in such a way, while I have given to the palace on your behalf 1,080 pounds of copper, and Šumi-abum has likewise given 1,080 pounds of copper apart from what we both have had written on a sealed tablet to be kept in the temple of Šamaš.”
So here is Nanni, with his contract for delivery of copper to a customer witnessed by the temple, having paid for the consignment, and now faced with undeliverable goods. El-Nāșir’s refusal to refund him has left Nanni not only short of copper against a contract with a treasured royal customer, but also with his employee stranded in a foreign land without cash. Nanni has had enough:
“Take cognizance that (from now on) I will not accept here any copper from you that is not of fine quality. I shall (from now on) select and take the ingots individually in my own yard, and I shall exercise against you my right of rejection because you have treated me with contempt.”
Can you blame Nanni for shifting his terms to delivered customer’s warehouse, where he can safely inspect the goods?
Had he been doing business today, Nanni would have benefitted from an accredited assayer to test and verify the quality of the metal received. A sample would of course need to be representative of the whole consignment, to avoid the issue of in-spec material being placed on top of a bad batch. Or to uncover cases of consignment-switching, such as when, on opening a container of ore (say, tantalite) at port, the buyer discovers that it is something else (say, cement).
You probably won’t be surprised that Nanni’s dispute with El-Nāșir’s was not the only one. Far from it. Nor was copper the only metal where buyers found themselves short-changed.
There is a silver story here too, among others, waiting to be told. From the collection of cuneiform complaints found at his home, it appears that, as El-Nāșir’s reputation among fellow metal merchants deteriorated, so did his business.
The El-Nāșir brand was forced to diversify away from copper into real estate, foodstuffs and even second-hand clothes3 .
Living as El-Nāșir did in ancient Mesopotamia, the option of trading bitcoin and NFTs simply did not exist in the age of clay — not digital — tablet and stylus.
El-Nāșir appears to have lived out his old age back in Ur with dwindling finances, in a downsized house of which part had been sold off to a wealthier neighbour, and hemmed in by a towering pile of customers’ complaints.
What an inglorious fate for a once major metal merchant. Thank goodness, we say, for arbitration!
By Polina Sparks, MMTA
PS On which topic, if any MMTA Members have any queries about mediation or arbitration, they should not hesitate to contact the Arbitration and Mediation Committee, or the MMTA executive at email@example.com
The mediation and conciliation, long form and short-form arbitration rules as well as precedent arbitration clauses are available in the Trade Services section of the MMTA Website.
1British Museum, item number 11236
2 Oppenheim A L 1967a Letters from Mesopotamia University of Chicago Press, Chicago, 1967
3Read more about El-Nāșir and his haul of customer complaints in Kristina Killgrove’s article for Forbes: Meet the worst trader of 18th century BC https://www.forbes.com/sites/kristinakillgrove/2018/05/11/meet-the-worst-businessman-of-the-18th-century