At first I thought the letter to members by Karen Gough, outgoing president of the institute, was a pebble in the pond. No, no, said a fellow arbitrator, it is a grenade over her shoulder. No, no, said another, the president has all the accuracy of a B52 navigator aiming a smart bomb down the mouth of an enemy cave in Afghanistan. She has written to all 10,000 members of the institute to tell them that their new disciplinary regime is so busy dealing with complaints about members that it needs another £150,000 from its members so that the members can be put on trial. They're are all going to be tickled pink with that and pay up £15 a head.
They will be even more tickled pink when they learn how the disciplinary machine operates. The starting pistol is a complaint by (usually) a party in an arbitration. It can be piece of spite or spoiling tactic, or well meant. Sometimes the institute brings its own investigation if it hears of an arbitrator removed for "an irregularity". Then an institute investigator looks for a prima facie case of incompetence or doubtful behaviour. If made out, the institute prosecutes its member. There is a charge sheet, there are months or years of preparation, there is a three-person tribunal, there is a trial, witnesses are examined, and cross-examined, the arbitrator is examined and cross-examined. There are legal submissions by experienced barristers; there is a judgment from the tribunal. It reminds me of a court martial.
The reason for all this is to uphold and improve standards, protect the public, protect the institute, and protect the other members. Sound objectives. But is a trial the best way to achieve them? Is it a good idea to send out a message to all arbitrators of that institute that if they make mistakes, their club will prosecute and punish?
When competence is in doubt, don’t investigate the arbitration, investigate the arbitrator. Treat him like a B52 pilot. Get him in for a test
Let me be plain. I do not want an arbitrator deciding any dispute of mine unless I have a guarantee of complete independence and impartiality. An arbitrator carries out a judicial function and I demand judicial independence. In 1994, the United Nations Commission on Human Rights recorded that it "an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is not discrimination in the administration of justice". The worry is that if arbitrators can be put on trial by their institute, that institute machinery will sully the relationship between arbitrator, the parties and the very heart of independence. How come? The arbitrator could find themselves being bullied. There is a real risk that they will try to ingratiate themselves with, or avoid offending, a party. A real risk too that they will trim and tailor their binding award to avoid trouble from their own institute.
And yet I, like the institute, want to root out incompetent arbitrators. First, I want the court to protect my client from those arbitrators. Second, I want the public to be protected from incompetence. But surely we can investigate competence without a trial? When competence is in doubt, don't investigate the arbitration that gave rise to the complaint, investigate the arbitrator. Treat him like a B52 pilot. Get him in for a test. Indeed, every arbitrator must be happy to take part in regular quality control tests. Is the arbitrator keeping up to date? Are they still able to cope with conumdrums? Is their health bearing up? Are they still interested in the job? Don't wait for a complaint! Test and test some more. Stop punishing, start partnership. As for the £150,000 extra income – spend it on the obvious.
Oh yes, I nearly forgot the neat bit of high-level guidance. The Society of Construction Arbitrators has published an up-to-date guide to the Construction Industry Model Arbitration Rules; important because the JCT stable of contracts incorporates CIMAR into the arbitration clause. Snag is that a one-liner incorporates the rules. So you have to obtain the CIMAR first, then go on and invent in a copy of the guidance notes. Go to www.arbitrators-society.org for help.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.