ARBITRATION – ADVERSARIAL OR INQUISITORIAL?

Arbitration

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

9 March 2021

s 34 Arbitration Act 1996

“It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter…

(2)
Procedural and evidential matters include —

(g)
whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law;”

Things changed big time in 1996 – from arbitrators sitting back passively to arbitrators intervening + calling for further evidence.
Now parties know that the Tribunal may ask for awkward information. Arbitrators do have the power – Statute confers it but do arbitrators act or do they remain mute? Are arbitrators happy with their new powers or do they turn away – worrying about a “procedural irregularity” application to the courts?

My view – Arbitrators should be brave and not be intimidated. Statute has given you power – you should use it sensibly + rationally.
Agree or Disagree?

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