What are the facts that lead you to ask yourself if you are conflicted? Your recollection of the meeting with Someone is a little hazy; it was twelve months ago + you did not make any notes or write any follow-up communications or, indeed ask Someone for clarification. You remember that he was on edge + did make reference to adulterated documents. You cross-check with the submissions + documents sent to you by the parties + you see that reference is made to a dispute about the figures appearing on the bills of lading. The award reveals that substantial damages were awarded to Sellers and the appeal by Buyers is based on both liability and quantum. It is not a small case.
There will be an oral hearing lasting about three days. And a reminder – you are the Sole Arbitrator. There are no wingers with whom you can discuss the merits of the case. You are on your own. No question, it is a big responsibility. But are you the right person to discharge the responsibility?
You have no prior knowledge of the parties, the terms of the contract or the market price. The identity of Sellers and Buyers was not mentioned by Someone. You do recall that Someone did refer to possible fraud and adulterated documents but you do not recall asking any follow-up questions The advice that was sought from you was mainly on quantum + the reliability of the market evidence from two of the brokers. But this was not a five-minute conversation. Your style of work is to ask questions + understand the issues before you proffer any advice or comment.
You reconcile the facts of the case – as disclosed by the documents submitted by the parties – with your recollection of your one-to-one discussions with Someone +, clearly, there is an issue of your prior knowledge. But your instinct is to look for ways in which you can continue rather than withdraw. Why?
#206. EPISODE 4
28 FEBRUARY 2022 “A CONFLICT OF INTEREST