Duties of Law of Arbitration - Lecture Slides - Law of Arbitration - Lecture Slides, Slides of Islamic Law

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Qualifications
Duties
Grounds for Challenging
Immunity
Revocation of Authority Docsity.com Absence of Specific Qualification in AA
Continental Grain Co v China Petroleum Technology & Development [1998]
The applicant had a mistaken impression. The arbitrator was not legally qualified.
In the absence of any express agreement as to the qualifications of an arbitrator, there is no basis for terminating the mandate of an arbitrator who does not possess the qualifications anticipated by one of the parties. Docsity.com Lack of Qualifications
Jungheimm Hopkins & Co v Foukelmann [1909] 2 KB 948
The proceedings and award are void. The arbitrator was required to be a member of the trade association
Rahcassi Shipping Co SA V Blue Star Line Ltd [1969] 1QB 173
The award of a lawyer umpire was void as the agreement stipulated that the umpire was to be a commercial man and not a lawyer. Docsity.com ARBITRATOR'S QUALIFICATIONS AAA
CODE OF PROFESSIONAL RESPONSIBILITY FOR ARBITRATORS
General Qualifications
Essential personal qualifications of an arbitrator include honesty, integrity, impartiality and general competence
An arbitrator must demonstrate ability to exercise these personal qualities faithfully and with good judgment, both in procedural matters and in substantive decisions.
a. Selection by mutual agreement of the parties or direct designation by an administrative agency are the effective methods of appraisal of this combination of an individual's
potential and performance, rather than the fact of placement on a roster of an administrative agency or membership in a professional association of arbitrators.
An arbitrator must be as ready to rule for one party as for the other on each issue, either in a single case or in a group of cases. Compromise by an arbitrator for
the sake of attempting to achieve personal acceptability is unprofessional. Docsity.com Functions of the Arbitrator
To resolve in a judicial manner every dispute or difference that has been referred to him by the parties to an arbitration agreement on the basis of the evidence and submission.
Under a legal duty to perform his duties with due care.
Derives from the AA and the Arbit Act 2005
Legal duties as well as moral and ethical Docsity.com Duties of An Arbitrator
i) Uphold the principle of natural justice
Audi alteram partem
Fairly
Judicially
Ii) He should decide only disputes submitted to him
iii) He should comply with the terms of submission.
Iv) He should decide according to law Docsity.com Principles of natural justice • S.20: Fairly  should not favour one party over the other.  must not hear one party to the dispute or witness in the absence of another, except in such few cases where it is so provided.  he must not receive information from one side which was not disclosed to the other party.  Equal treatment.  Reasonable opportunity to present their case. Docsity.com According to law
He should decide according to law, and not solely on what he considers fairs and reasonable under circumstances Docsity.com Duty to Disclose
Independence and impartiality.
The arbitrator has the duty to disclose any circumstances likely to give rise to justifiable doubt to his independence, impartiality and neutrality.
Non-disclosure may vitiate the appointment and invalidate the proceedings and the resulting award. Docsity.com Duty to Act with Diligence
He is obliged to perform his duties without unnecessary delay.
With due diligence
To complete within reasonable time
KLRCA: Time limit of six months from the receipt of the Respondent’s statement of defence for the arbitral tribunal to render its final award.-This may be extended with the consent of the parties. Docsity.com Immunity of Arbitrators
Issues: whether the parties have the right to sue the arbitrator for failure to perform his duties within a reasonable standard of conduct and competence? Answer: No
Acting in their judicial capacity: Immune from liability in negligence.
Reasons:. 1. the need for independence 2. to avoid threats to judicial decision making 3. the avoidance of the rehearing of actions Docsity.com IMMUNITY S.47 This section provides statutory immunity for the arbitral tribunal which will be a defence to all causes of action. H/ever, such immunity can only be used in the discharge of the arbitral function and not in bad faith. Docsity.com Immunity to Arbitral Institutions  S.48  This section extends the immunity to arbitral institutions in the discharge of their function to appoint or nominate an arbitrator
Normally the arbitration rules of the various appointing authorities have inserted provision assuring immunity to the arbitral institution. Docsity.com Impartiality or Independence Impartiality or independence  Arbitrators are expected to perform duties impartially and without bias  Honest + deliver a totally impartial decision
Turner v. Builders Federal [1988] 2 MLJ 502 “…an arbitrator must always act judicially with a detached mind and with patience. He must not take an adversarial role and his response must be always measured and circumspect”  an arbitrator must always be detached + rule only when necessary + after hearing the parties  Must not make any premature utterances Docsity.com Circumstances in Which Leave May be Given
Extreme remedy. Only used in unusual cases.
1. Misconduct
2. Actual or apparent bias
3. Deficiencies in arbitrator’s capability or performance
4. Justice of the case Docsity.com Misconduct?  Serious and irreparable misconduct  a sort of mishandling which is likely to amount to some substantial miscarriage of justice  Occurs when he fails to observe the major portion of evidence /consider the question of law raised before him • it also amounts to misconduct if he appears to have favoured one of the parties and failure to follow the rule of natural justice Docsity.com Misconduct
3. Where the award was improperly obtained Eg: where there is special r’ship btw one party or his arbitrators 4. Arbitrator has accepted bribes from the parties in the arbitration
Turner v Stevenage Borough Council [1997] ADRLJ 409 An arbitrator who had sought an interim payment from both parties was not guilty of wrongful conduct. 5. Arbitrator receives hospitability from one of the party + with intention of influencing the arbitrator Docsity.com Misconduct 6. Arbitration was conducted in breach of the principle of natural justice Eg: audi alteram partem principle 7. An interested party allow himself to be appointed as an arbitrator Docsity.com Actual or Apparent Bias
Bias- predisposition to decide for or against one party without proper regard to the true merits of the dispute.
The award which is the result of such bias may be set aside.
Lord Hewart CJ in R v Susse Justice ex party McCarthy “ of fundamental importance that justice should not only be done but should manifestly and undoubdtedly be seen to be done.
Interest directly related to the SM.
Eg strong personal animosity towards a party
Catalina (Owners) Norma (Owners) [1938] 61 Ll L Rep 360
The ct removed an arbitrator –Arbitrator made an allegation tt portuguese people are liars. Docsity.com