GOOD MORNING FROM LONDON
SHOULD MR STALLARD STAND DOWN BECAUSE OF BIAS?
Mr Stallard has made clear that he disapproves of current Israeli action against Hamas. He has said that he will never visit Israel again. His mind is made up. He has expressed strong subjective views about Israel. But he has not expressed any view or made any comment about the Israeli defendant company. He has expressed no bias against the company. His angry outburst at the Arbitrator’s Training Day was directed at Israel and Israel alone. Is that sufficient for him to say that he is free of bias and should continue as a member of the Tribunal?
It is not so much a matter of what Mr Stallard believes about his own possible bias but how his actions would be viewed by a fair-minded independent observer. The requirement is that an arbitrator must be objective, balanced, independent, neutral, detached and free of any prejudice or bias. Mr Stallard will say that he fulfils each one of the requirements. He is an experienced arbitrator; well known in his chosen field of practice; his record is unblemished; he has never been cited for any adverse conduct or comment; he is fully aware of his S33 duty to be fair and impartial. Taking these matters together Mr Stallard stands by his decision not to withdraw. He is not – in his own opinion – biased.
But there is a difference between Mr Stallard’s subjective conclusions about his own mind set and the conclusion that may well be reached by the independent neutral observer – known popularly as “the Man on the Clapham Omnibus”. This is a contested arbitration. There is a fundamental conflict in the recollections of the main parties as to what was said when the contract between the Claimant and the Defendant was made. The expert witnesses do not agree on the meaning of key terms in the Wind Farm Agreements. And this being the case, there will a number of instances when the three arbitrators will be called upon to exercise a judgment in favour of one party or the other. In these situations – and with Mr Stallard’s angry words at the Training Day borne in mind – would a neutral third party be satisfied that Mr Stallard’s judgment would be free of bias?
Readers of this Column will make up their own minds. After all, this is an intentionally fictional narrative designed to weave together legal argument and factual observation and to consider issues that may arise in the course of normal commercial life. As this narrative unravels, readers – too – must resist the temptation to view the issues from a subjective, partial or one-sided perspective. Put yourself, as well, in the position of the arbitrators and not the position of the parties. This case is intentionally topical because the issue may well arise in real life in the not too distant future.
The problem of one sidedness is an ever-present in arbitration. Arbitrators have to remind themselves, constantly, of the need to keep their attitudes free of prejudice, bias, partisanship, subjectivity and partiality. Even if the arbitrator is appointed by the arbitral authority and not by either of the parties, the problem exists. For me, Mr Stallard has to stand down – not because he is pro-Israel or pro-Hamas but because he holds strong views about Israel which may interfere with his obligation in the arbitration to be objective and detached. The cost of the wedding was thrown into the mix intentionally to illustrate the kind of pressures that may come into play in the course of an arbitration. Everybody, including arbitrators, have bills to pay.
The next Dispute Resolution topic will focus on a Mediation on Grandparents’ Visiting Rights