1. If the arbitrator finds that his duty under section 33 of the Arbitration Act 1996 is in conflict with the parties who have agreed on a course which the arbitrator would (reasonably) regard as unacceptable, and the conflict cannot be resolved, the arbitrator reserves the right to resign from the Reference.

2. In the unlikely event of resignation, it is agreed that:-

2.1 The arbitrator may retain such fees and expenses as have been paid to him as at the date of resignation;

2.2 As between the parties payment of the fees and expenses of the arbitrator will be dealt with as part of the costs of the arbitration and the tribunal, as reconstituted, shall make an award allocating such costs as part of the costs of the arbitration under section 61 of the Arbitration Act 1996;

2.3 The arbitrator will incur no further liability to the parties, save that he will bear the expenses of the Royal Institution of Chartered Surveyors in the appointment of a replacement arbitrator.

Another reason to ensure that parties agree to your Conditions of Engagement.

The letter from Brian Fender (Issue No.43), like the earlier letter from Roderick O'Driscoll, contains sound advice, but there remains the difficulty which instigated the exchanges of correspondence in the first place.

Brian states that "no one has objected up to now," but Brian did not tell us whether or not he had accepted the appointment subject to his terms and conditions. If Brian accepted the appointment subject to the parties' agreeing to the two conditions which he quotes in his letter, then there is no difference between us on the point because if the parties do not accept the conditions Brian can decline to accept the appointment; and, of course, the question of resignation would not be relevant. It is also pertinent to note that if an arbitrator gives only a qualified acceptance to an appointment, then he or she would not yet be the arbitrator - and, thus, he or she would have no power even to order a preliminary meeting or give any directions whatsoever.

If, however, Brian accepted the appointment and then wrote to the parties setting out his conditions, we are not agreed about the matter. In which case, I believe that section 25 of the Arbitration Act 1996 is the point for discussion.

Section 25 is not a mandatory section and the parties and the arbitrator can do what they please about it, subject to their reaching an agreement. But, let us assume that section 25 is as already stated in the Act. Let us also assume that the parties are confronted with Brian's condition (1) which has been communicated to the parties post Brian's acceptance of the appointment. Let us say that the parties reject the condition. Now, it seems that upon that rejection of the condition, Brian would say, "I will resign on the basis set down in condition (2)." Upon hearing that, the parties may then say, "We do not want your resignation, we want your services as the arbitrator all in accordance with your acceptance of the appointment and also all in accordance with the Arbitration Act which gives us the power to decide upon procedure and other things, if we can agree." What then is the situation?

Under such circumstances, and taken to its logical conclusion, it seems to me that sub-sections 25(2)-(5) are the governing provisions and the arbitrator will discover in hindsight whether or not the court believes that he or she was in all the circumstances reasonable to resign. Under the circumstances, which Brian has explained, it seems to me that it would be difficult for the court to conclude that an arbitration agreement which gave full effect to one of the most important provisions, namely section 34, would be grounds for resignation post acceptance of the appointment - at which time, i.e. the acceptance of the appointment, those provisions were well known to all parties and the arbitrator. Likewise for section 41. In any event, if the court did agree with the arbitrator that the particular agreement between the parties 'made it impractical to deal with the matter justly and efficaciously' as Brian has stated in his condition (2), then there would be no need for Brian to impose the conditions in the first place because the conditions would simply be advising the parties about what is already in the Arbitration Act.

With the above in mind, I believe that it is important to know whether or not Brian is proposing a conditional acceptance of the appointment or simply a post acceptance communication encouraging the parties to be sensible.