The world of arbitration never ceases to throw up surprises. The latest is a report that an extremely experienced arbitrator who (as party-appointee) wrote mid-arbitration to his party appointee’s counsel stating:
Admittedly, the email was headed “HIGHLY CONFIDENTIAL: NOT TO BE USED IN THE ARBITRATION” and was said to be justified because it was about the “selection” of the chair. Further the receiving counsel agreed to respect that confidence.
That party went on to lose in the arbitration and became the award debtor. It challenged the award on various grounds – all of which failed. It had, however, asked, that in the event that it prevailed in the challenge, the award be set aside rather than be remitted. This was on the basis that internal conflict on the tribunal meant that remission would be inappropriate and in support of that conflict disclosed the arbitrator’s email – but not the reply agreeing to respect confidence. Different counsel represented the party in the arbitration and in the challenge.
The party-appointed arbitrator complained that his confidence had not been respected and produced counsel’s email agreeing to respect the confidence.
Although, having dismissed the challenge, the Judge did not need to consider the set aside/remission point, she did say:
The Judge was, of course, absolutely correct and the judgement reflects international practice. The party-appointed arbitrator had put counsel in an extremely difficult position: whether the email should have been disclosed immediately on receipt – risking disrupting the reference – or not, risking later challenge. Whatever difficulties the tribunal had they should have been sorted out behind closed doors (the Judge recognised that it might have created a “somewhat awkward working environment”) and if they could not be resolved there should have been a joint, rather than unilateral, communication.
The case is Symbion Power LLC v Venco Imtiaz Construction Company  EWHC 348 (TCC). For the puerile the arbitrators are not named in the case report but, as with most things, the identities can be found by some digging on the internet!
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