POST #29

Arbitrators can require answers to awkward questions. Not in every situation but the parties need to know that they can come unstuck.

In Post 27 I posed a question – can Arbitrators require parties to disclose documents they would prefer did not seek the light of day? Yes they can.

S 34 (2) (b) of the Arbitration Act 1996 allows the Tribunal, unless otherwise agreed, “to ascertain the facts”. I gave as an example the issue of information about market price. The Tribunal directs both parties to disclose all information re their investigations. The parties have to comply + hand up answers to market price questions that do not assist their case – with one exception.

Information gathered in preparation for an arbitration does not have to be provided because it is privileged. But if you asked the question of the market before arbitration proceedings were even contemplated you have to hand up the answers.

Parties must have their eyes wide open. Arbitrators need to do the same as well

#cietac #shiac #ciarb #lcia #gafta #fosfa