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South Eastern Arbitrator's
Workshop
25 March 2006
A highly enjoyable Arbitration Surgery (or perhaps more accurately, Workshop) took place on Saturday 25 March at 16 Mill Street, Maidstone, Kent by courtesy of Messrs. Gullands Solicitors. There were 10 of us who attended the Surgery and we worked on 4 distinct aspects of the Arbitration process: firstly, shortening of procedures, secondly understanding Arbitrators and the parties, thirdly the burden of proof and fourthly appealing the Award. There was lively discussion about all these subjects. The results of our discussions, which we thought were worthy of recording and passing on in "News & Views", are as follows:
Shortening the Procedures
The following courses were suggested;
1. In connection with the Arbitrator's appointment, it was suggested that the Claimant, rather than waste time on a backwards and forwards correspondence of who to select, should immediately write to the Respondent and ask for 3 nominees who the Claimant would then accept.
2. A more successful way was to provide in the original contract more detailed provision for governing the procedure for agreeing the appointment of an Arbitrator.
3. Another suggestion was that in the contract there should be 3 Arbitrators perhaps from different disciplines nominated to whom, when a dispute arose, the Claimant alone could select.
4. There was general consensus however that the appointment for Arbitrator was one of the most important aspects of Arbitration and that due consideration and time should be given to it.
5. In connection with matters generally, it was agreed that some advance knowledge of the issues was helpful; that there was some advantage in many cases in holding a preliminary meeting at the location where the dispute arose and finally there was general consensus, except in the smallest cases, that parties should be encouraged to be represented.
Understanding the Arbitrator
During the discussion of this topic, we agreed that;
1. Arbitrators should be more ready to call in outside experts to assist. In the long term, it usually saves money.
2. Whilst it was accepted that Arbitration decisions and Arbitration Awards have to be made in accordance with the law, there were many occasions such as touch/taste type of Arbitration where the law could be irrelevant.
3. We should be aware that lawyer advocates tend to be far more inquisitorial. The parties and Arbitrators should acknowledge each others' disciplines and understand the culture and the backgrounds from which they come.
4. It should be acknowledged that in many cases experts (particularly where the Arbitrator is of the same discipline) should be recognised as technical advocates rather than experts. Whilst this may apply in the face of requirements of the Courts that all experts should be completely neutral and that their sole duty is to the Court, there is some sense in acknowledging that they are actually advocates for the side they represent.
5. The parties should be aware of the need for absence of bias when advice is given.
Applying the Burden of Proof
The third topic was applying the burden of proof.
1. This duty on the Arbitrator is sometimes overlooked and it is interesting that the subject is not indicated in the indices of either Hudson, Keating or Russell.
2. The consensus generally amongst us was that an Arbitrator ought to be aware and think explicitly about the burden of proof and whether it has been discharged.
3. We also thought that it was generally advisable for the Arbitrator to address the burden of proof question in his Award and, if appropriate, to give reasons why any particular matter was rejected or accepted.
4. On a lighter note, there was a suggestion that if the parties found the Arbitrator nodding off after lunch the least offensive way to bring him back to life was to knock all your books on the floor!
5. The question of parties defaulting in time compliance was also raised and it was suggested that Arbitrators should be pro-active and of their own motion should write to a defaulting party advising him of the potential liability for costs in having to draw his attention to the default.
6. Finally, on the burden of proof, there was general consensus that Arbitrators should not be primarily guided by their intuition but should actually analyse each allegation made to ascertain whether the burden of proof had been met.
Appealing the Award
1. The consensus was that Arbitrators' determinations in their Awards whether on legal points or otherwise should not be stated to be findings of fact simply in order to prevent subsequent Appeals.
2. It was acknowledged that Appeals both against facts and points of law were difficult but appealing against findings of facts was virtually impossible.
3. We touched on the subject of clarifications of Awards and the experience of most was clarification was best given by letter, and that the Award itself was not amended.
4. It was also important to note that time for entering an Appeal did not necessarily arise from the clarification of the last point raised by parties. If a number of points were being clarified, the date of each clarification must be considered in relation to an Award being made.
5. In view of the provisions of the Act that Appeals should be made 28 days from the date of the Award (not the issue of it), it was agreed that Arbitrators should not date the Awards until they actually remit them to the parties.
Final Thoughts
There was a general consensus that the Surgery was a useful one and enjoyable; that it was important that Arbitrators should exchange their experiences and views and the Surgery was a good way of dealing with it. It was suggested that that yearly Surgery was sufficient but it was hoped that there would be greater attendance at future meetings.
Report by Rod O'Driscoll