ADVERSARIAL v INQUISITORIAL
A reader asks “what happens if Sellers do not take the bait. If they fail to respond or, perhaps, do so and maintain their previous position.”
The Tribunal has an obligation to be clear and straightforward in its directions. It is empowered to act – indeed, has a duty to act. The option of being silent is not on offer. There will be some arbitrators who will prefer to adopt an adversarial approach, remain low key and let the parties make the running.. They may be timid by nature preferring, in their thinking, not to open a can of worms. Their style of arbitrating tends to the more passive, and withdrawn. But the adversarial approach is no longer available. Unless otherwise agreed, the arbitrator has a duty to ascertain the law. The law of default is the issue and the Tribunal is required to address it.
The Tribunal’s style is always respectful + wherever possible – pleasant. This is not a war but dispute resolution. There is a thorny problem, it needs to be addressed and with clarity so that the parties cannot claim to misunderstand.
How about – “The Tribunal notes that Sellers placed Buyers in default on 2 March 2012 for failing to open a Letter of Credit. The Tribunal also notes that the shipment period was March/April 2012. The Tribunal directs both parties, within 14 days, to comment to the Board with copy to the other side as to the timeliness of Sellers’ default notice”
If the parties comment – they comment. And if they don’t – they don’t. You have done your duty. You have made the issue sufficiently clear. Unless new matters arise, you draft your award taking into account their responses.
Tomorrow – 10 September 2021 – you are asked to mediate a sensitive dispute to grant planning permission to house Afghanistan refugees.