Karen Gough, practising barrister and past President of the Institute, and a great supporter of our South East Branch, was once again kind enough to join us on 18 November to talk about some of the problems arising from arbitral practice. The title of her talk was Getting it right – or at least staying out of trouble. It was clear from her talk that there was plenty of trouble that an arbitrator could get into during an arbitration. As she pointed out, there was invariably one disappointed party who, even if not openly critical of the process you adopted to determine the dispute, would feel inclined to appeal. However, Karen made it clear that there were not many applications to the Court following an arbitrator’s award, but they did make interesting reading.

Section 24 of the Arbitration Act 1996 deals with the removal of arbitrators. Proceedings will be commenced by a Notice of Application, a copy of which will be served on the arbitrator who will also be made a party. Her advice was very firmly that in such a situation the arbitrator should not take any part in the proceedings. He should acknowledge the service of the process but take no further steps in it and certainly not become involved in the dispute. The reason for this was that often the Court, rather than remove the arbitrator, would refer the matter back to the arbitrator with some gentle advice as to how he should have dealt with the matter. If the arbitrator took part in the application proceedings, it would be difficult for him or her not to show apparent favour to one or other of the parties, which could lead to allegations of bias later.

Karen referred to a recent case before His Honour Judge Thornton concerning removal of an adjudicator. The Judge had been very critical of the adjudicator’s intervention in those proceedings.

A good arbitrator should have a self-awareness and appreciate that he is capable of making a mistake. He should not be a lone ranger, but should listen and learn from the mistakes of others.

A pitfall that should be avoided is to make sure that the appointment is correct and that the terms and conditions relating to the fees are agreed. If not, these can easily arise as problems at a later stage. Karen then took us through Section 24 and the various subsections, pointing out that by far the most frequently used was that relating to the misuse of procedures under Section 33.

Karen finished her talk with a wonderful example of what appeared a somewhat hysterical case in which she was involved, where the arbitrator seemed to have gone right off his trolley. After considerable tolerance the client eventually, on Karen’s advice, gave instructions for an application to the Court for the arbitrator’s removal, and he was removed. It is unsurprising when one reads about such cases that arbitration has fallen into disrepute, and the case makes very depressing reading. However, hopefully the case is an exceptional one. Arbitrators should not arbitrate unless they at least have a basic concept of how legal procedures work.

We are indebted to Karen for her time and work in the preparation of this extremely useful talk.

reported by Roderick O’Driscoll