AN ANXIOUS NEW ARBITRATOR – EPISODE 4

Written by Graham Perry

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

24 May 2022

ARBITRATION #226

NOW THE ARBITRATOR FRIEND HESITATES

We know where we are. The new Arbitrator B has concerns about the functional imbalance of the Tribunal. She feels that fellow winger, Arbitrator A, is taking the initiative and setting the agenda. The Chair – Arbitrator C – seems to be content “to go with the flow” and endorse the steps suggested by A. You have two reservations – first, with the manner of A and, second, with some of the steps A is proposing.

There is also something in the words of A in Tribunal zoom conversation which is like a pinprick to the finger. Ouch! “Over here we do it this way” says A and leaves B feeling as the outsider. B takes it as unreasonable pressure – a form of bullying. Things become worse when A recounts his experience of arbitrating in the Far East with scornful comments about the reliability of local arbitrators. A whiff of racism appears. B remains uncomfortable. C remains mute. B decides to speak to her good Friend in London.

The Friend is stable, balanced + fair and quickly realises the genuine nature of the problem facing A. What to do? At this point, the Friend – unintentionally but inevitably begins the guessing game. Who is A? Actually the identity of A is irrelevant. His or her name should not be disclosed by B to the Friend but it does happen sometimes.

The Friend needs to be principled. He needs to focus on the issue – what are the facts? What has been said and done? Personality should not come into the discussion – for two reasons; first, it is a breach of confidentiality and, second, no decisions are made on the basis of personality but only on one basis – what is the S33 way to proceed.

And this is the direction that B needs. Proceed on the basis of fairness + impartiality only. Look at the facts + work out the next steps. Be prepared to disagree with A, and maybe with C as well. That is quite OK providing everything you do is infused with integrity + openness.

Episode 5. 25 May 2022

ARBITRATOR B TAKES OFF HER GLOVES

Episode

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