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MATTERS OF FACT AND LAW
I had planned to write in support of Francis Miller's article in the September issue of N&V but then we received a letter from Deputy District Judge Kevin Beach (see elsewhere in this issue) setting out precisely (and probably more concisely) what I had intended to say. I would only add that an arbitrator can obtain legal advice if needed although I feel that arbitrators should ensure that they have sufficient legal training (ie far above that required by CIArb) to deal with virtually all matters - seeking legal advice should be a rare occurrence if arbitration is to remain a proper alternative to litigation.
One further thought - there are some matters of law which are the sole prerogative of the parties to raise (eg limitation) and therefore the arbitrator must not raise such matters.
I will therefore look at other parts of the process.
Input to Arbitration comprises three elements - fact, opinion and law. Facts are entirely for the parties to adduce - the arbitrator may ask for clarification but has little to do with what is adduced.
Opinion may be given by 'experts' (witnesses of opinion) but we should remember that one of the reasons for using arbitration is that the arbitrator can use his own knowledge to determine an outcome from the facts (but remember Fox -v- Wellfair). What then if the Arbitrator comes to an opinion, based on the facts adduced by the parties, which differs from the opinions given by the 'experts'. I suggest that this is the same situation as when the Arbitrator comes to a finding of law which has not been advanced by either party (ie the previous discussion) and that the Arbitrator, under most circumstances, will have to follow his own finding. Of course he must put the matter to the parties but, as with findings of law, must make his own decision. The chief difference between the findings of opinion and law is that the Arbitrator's 'opinion' is a finding of fact and is not susceptible to challenge, unless procedure has been breached.
Peter Horne