BIAS IN OPERATION DO YOU ACT OR DO YOU GO MUTE?

BIAS IN OPERATION

Written by Graham Perry

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

16 February 2021

Bias in arbitration comes in many guises – sometimes it is apparent and sometimes it is unconscious and when it comes what do you, as Chair of the Tribunal does? Actually, it is a big question and, if you leave it because it makes you feel “awkward”, you are not doing your job.

Bias is a direct challenge to the absolute requirement that you are “fair and impartial”. You may be but one or more of your colleagues isn’t. Leave it and you are allowing the bias to persist – you are allowing the arbitration process to be undermined. You have to act – legally and morally. So, don’t be a namby-pamby – wise up – see what is happening and why, if left to fester, the bias you have witnessed can kill the process and lead you to an award that is unfair and partial.

Please excuse the direct nature of this issue but it goes to the heart of your character. Have you got character? Have you a clear sense of right and wrong that spurs you into action when the bias – apparent or unconscious – makes its appearance? Or are you all talk and no action?

All of you reading this piece know exactly what I mean, and you should be shifting a little uncomfortably as you read if it triggers a moment of conscience about the occasion – or occasions – when you remained mute and said nothing when bias took over.

My guess is that all of us sometime in our career has taken the mute option and said nothing when something cried out to be done. You see arbitrators do need to review and reflect and react. But it can be difficult. You may feel too junior to say anything or you may be unsure about the bias or unsure about what to say and how to say it.

And the books do not tell you. The books know all about the legal principles that permeate an arbitration but on these conscience issues, there is very little. That is why this website has come into existence. To touch on the untouchable. To speak the unspeakable. To unmute rather than to mute.

Now you may say that you do not want to reveal your problem because it will reveal your identity. It might be read by fellow members of your tribunal. I have an answer – email me in confidence and I will discuss with you how I will bring it up. We need to make a start and discuss these issues and raise standards and do the job properly. We have to have the character or we are nothing.

“Graham Perry”

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