Tuesday, October 14, 2008

Arbitrator or “Arbitraitor”? Part 3

Challenge of “Arbitraitors”:

Parties in arbitration may seek to challenge the “Arbitraitor” that they have appointed if circumstances exist that give rise to justifiable doubts as to the “Arbitraitor’s” impartiality or independence[1]. Arbitral institutions provide for such challenge procedures if the matter is registered under the institution’s rules[2].

In Modern Engineering Bristol Ltd. v. C. Miskin & Sons Ltd.[3], Lord Denning MR in removing an arbitrator, stated on page 138 as follows:

“…. I would ask whether his (the arbitrator’s) conduct was such as to destroy the confidence of the parties, or either of them, in his ability to come to a fair and just conclusion.
The question is whether the way he conducted himself in the case was such that the parties can no longer have confidence in him… It is most undesirable that either party should go away from a judge or an arbitrator saying, “I have not had a fair hearing”.

It is definite that parties who had an arbitraitor will definitely walk away from an arbitration feeling that they did not have a fair hearing. Some would challenge the arbitraitor, others would vow never to appoint him again. But the most vital consequence is that arbitration’s reputation will be tainted and this will harm the arbitration fraternity.

Conclusion: A virtuous person is better than virtue and a vicious person is worse than vice:

The shepherd keeps the sheep from harm and hurt;
Who then would keep them safe by day and night
If they who watch were wolves instead of men?[4]

All in all, if you look at all the traits of an “Arbitraitor” above, you may realize that an “Arbitraitor” is a person who destroys the good name of arbitration. I was once asked by a lawyer with regards to my view of the present condition of the arbitration world. I told him that if we continue to have a lot of “Arbitraitors”, it will not be long before we see the arbitration world damaged direly.

Now I ask you, do you want to be an arbitrator or an “Arbitraitor”?

[1] Rule 9-12 of the UNCITRAL Arbitration Rules encompasses the Challenge of Arbitrators procedures.
[2] A sample of the challenge of an arbitrator is published in the KLRCA January 2007 Newsletter with the names of the parties and arbitrator omitted due to the confidentiality principle.
[3] [1981]1 Lloyd’s Rep 135
[4] Anonymous Arabic poem.

0 obiter dictum: