Party Autonomy
In commenting on the possibility of an arbitrator wishing to override an agreement on procedure that the parties have agreed, Francis Miller points out that the arbitrator can always refuse to accept the appointment. True, but if they agree the procedure after he has been appointed, what then? I get over this by including these two items in my relatively brief Conditions of Appointment:
1. That the parties notify the arbitrator no later than the Preliminary Hearing if it is their joint wish materially to restrict the arbitrator’s powers, identifying the requirement.
2. That the arbitrator be free to resign if, in his view, any such restriction makes it impractical to deal with the matter justly and efficaciously and, in particular, if the reserved powers set out in Section 41 of The Arbitration Act 1996 are not retained.
I added these conditions when the new Act was passed. No-one has objected up to now. Indeed, the parties have probably seen those words as a safeguard to their basic rights.
Brian Fender