You know the choices for the arbitrators dealing with the fraudulent documents;- just disregard the three bad documents and make your mind up on the other 124 pages or disregard all the documents because they are tainted.
But are all the documents tainted? Isn’t it the case that just 3 out of 127 documents are tainted. They are not genuine documents. They have been changed to mislead you but you can rip them out of the bundle, put them in the shredder and make your decision on damages based on the remaining 124 clean documents. All the 124 documents are genuine and you can review the information they contain and reach a considered conclusion. It so happens that the 124 documents lead you to the same conclusion as would be the case if the three “dirty” documents were not excluded – substantial damages for Buyers. Is it fair to Buyers, therefore, to penalise them for three “dirty” documents which you have excluded from your mind when the remaining 124 lead you to an award of damages to Buyers?
But are you looking at the issue in the round? Are you taking all the factors into account? Isn’t it the case that Buyers did intend to mislead the Board – “to cheat” – in an attempt to strengthen their case. Someone in Buyers’ office prepared the bundle with the “dirty” documents in Tab 8, Pages 7/88/89. Buyers knew what they were doing and almost got away with it but you, the alert arbitrator, spotted the different font and exposed the deception.
So is the issue for the arbitrators the following;- do they overlook the excluded documents and award substantial damages to Buyers OR do they conclude that Buyers intentionally sought to mislead the arbitrators and award them nil damages?
ANSWER IN POST #281 TO BE PUBLISHED ON 9 MY 2022