It’s tough being an arbitrator. You’re expected to have expert skills in your field and be able to shoulder a weighty judicial burden. And one wrong move, such as making a simple phone call, will get you thrown off the job …
The arbitrator in this case is called Mr A Tank. That’s not his real name; it’s what Mr Justice Colman, called him. He did so after one of the parties in the arbitration applied to him to have the arbitrator removed. It is a case called Norbrook Laboratories Ltd vs Moulson Chemplant Ltd. Even if I know A Tank’s real name, which I do, I will not tell you. If the judge wants it kept a secret, well then, that’s that. Let me tell you the story in a moment.
First, though, remind yourself that arbitration is a popular forum for deciding a building construction dispute once and for all. Don’t confuse it with adjudication. Arbitration is the granddaddy of them all. It binds forever. Adjudication binds too, but only until an arbitrator or judge decides otherwise. And there’s the rub. Arbitrators have ever such a serious job to do. It is a one-shot judicial forum. Apart from in special circumstances, the arbitrator’s award at the end of the day sticks. Some say it sticks even more that a judge’s award in court. So, it’s no use having an arbitrator who isn’t up to managing that size of burden.
A Tank is a very fine engineer. Top notch in design and construction – the very business that the dispute is about. Moreover, he is actually working in that business on a day-to-day basis. The arbitration clause in the contract insisted on a highly qualified engineer being the arbitrator. But let me be plain. Being a highly talented engineer, architect, wigglepin expert does not make you a good arbitrator.
As arbitrator, you have to be up to your eyes and ears every day in arbitrating. A Tank’s technical skill and knowledge as an engineer was fine; A Tank’s technical skill and knowledge in judicially managing the “due process” of English arbitration was not. He left himself wide open to an accusation of “serious irregularity” and “bias”. And when I tell you what A Tank did, two camps will form up. In the red camp will be the lawyers and experienced arbitrators who will say “no wonder A Tank was removed as arbitrator”.
It might seem trivial that this arbitrator was removed simply because he took the initiative and made “unilateral communication”
In the blue camp will be the industry, the actual customers of arbitration, who will say “A Tank sounds like a damn good arbitrator – just what’s needed”.
So what did he do that the High Court saw as drastic enough to remove him and set his decisions aside? He, by himself, phoned up three people and asked them to come and give evidence! And, there is more: he made a telephone call to Norbrook directly; meaning he bypassed Norbrook’s solicitors.
Okay, which camp are you in? The lawyers and experienced arbitrators would stand shoulder to shoulder criticising A Tank. How about the industry, the users? What do you say? Are you at all concerned if the arbitrator becomes an investigator? Are you at all concerned that the arbitrator is a person who “gets to the bottom of the matter”? And if the arbitrator phones up the Angel Gabriel to give evidence when neither party thought of that, are you bothered?
Let me tell you this: judges really do support arbitrators. It will be a reluctant judge who removes an arbitrator. The court, too, is conscious of the danger of injuring the reputation of the arbitrator. Worst of all is to have a system that is so oppressive that arbitrators are looking over their shoulders, or can be manipulated by a canny party. But arbitration is a judicial process. The arbitrator is there to decide each of party A and B’s quarrels. The judicial mentality at all levels is simply to referee what is put to the arbitrator. The arbitrator is not an investigator; he is an expert in his own field who uses his knowledge the better to understand the case put. The English legal system does not invite the arbitrator to “get to the bottom of the matter”. It might seem trivial, even laughable, that this arbitrator was removed and arbitration decisions declared void simply because he took the initiative and made “unilateral communication”, but that’s the way that the law works.
I suspect the industry regards this as harmless; I suspect it will not understand the judge. And if we did it the industry’s way it would be incompatible with the arbitral judicial system that provides binding decisions enforceable with all the might of the court. And, if the industry wants a system that the courts can’t provide, then something has to give. Either arbitrator A Tank can’t be appointed to judicially arbitrate – a huge loss – or instead someone draws up “The Tank Rules” and thereby contractually agrees to judicial unfairness and serious irregularity. Easy!
Tony Bingham is a barrister and arbitrator