To help you celebrate our jubilee issue we are offering you two puzzles for arbitrators, instead of the usual one. To help us celebrate, why not send us some suggested answers, to one if not to both? We await your letters or e-mails!
You are appointed Arbitrator, pleadings are closed, witness statements and expert reports have been exchanged. Pursuant to your directions, the parties have produced an agreed list of the issues which they wish you to address. Both parties are represented by lay professionals (neither being members of CIArb) and it is apparent that their knowledge of arbitration practice and procedure is extremely limited. With less than a week to go before commencement of the hearing you decide to read fully into the case. On reading the list of issues, it becomes apparent that a number of matters do not appear in the pleadings, and other matters have formally been admitted. It is also apparent that several of the ‘issues’? cannot be answered in the form in which the issue is identified, and others lead absolutely nowhere. To compound the difficulty, some issues include a note that the Respondent does not consider this to be an issue, it is only included on the insistence of the Claimant (and vice versa). This is your first reference under the 1996 Act and you are very conscious of s.33 and are determined to avoid delay and expense.
What do you do?
You are appointed Arbitrator and call a preliminary meeting. At the meeting it becomes absolutely clear to you that the entire dispute centres around the single issue of interpretation of a clause of the contract, but that the calculation of liability, both for claim and counterclaim, would be substantial. It seems obvious that there should be a preliminary issue, probably on documents only, to decide the matter of interpretation; but the parties are both insistent that they require a full hearing of all issues. It is your first reference under the 1996 Act and you are very conscious of your responsibilities under s.33. You have tried all your powers of persuasion and pointed out the parties' duties under s.40 and that you find their insistence incompatible with your mandatory duties under s.33 but they will not be swayed.
What do you do?