A number of points arise from the Arbitrator’s indiscretion in meeting with the Observer.
Such an incident is more likely to happen in a smaller business sector than a larger business sector, and arbitrators in the smaller sector need to be alert to the problems that can arise from a casual encounter. This is to do with training and here the Custodians of the smaller arbitration sectors need to be on the front foot and take arbitrators through different situations that can and do arise. The Custodians have a duty of care to the arbitration users. Forewarned is forearmed.
Back to our narrative and the Chairwoman – having chastised the IBM (Icelandic Board Member) for his error – stood by him. She was protecting the arbitration from a re-start with a replacement arbitrator and also allowing the IBM to learn his lesson. Her first duty was to the arbitration. Was she doing right by the parties? Yes – so the IBM remained in place.
In this situation Sellers’ counsel, sensing a tactical advantage to exploit, might have tried to browbeat the Chair and the Board into an adjournment whilst a replacement arbitrator was found and the arbitration re-commenced. The Chair would have been right to stand firm and direct that the arbitration proceeds. Counsel do, sometimes, threaten. Stand Firm.
The Chair was also correct not to consult with the Trade Association. This was a Board matter for the Board to decide upon. Consultation with the Association would raise questions as to who was in charge of the arbitration – the Association or the Board? After the arbitration is concluded is the time to review the incident and to specify the lessons to be learned and the training to be introduced but until it is concluded the Board, in this situation, is its own counsel.
THE NEXT NARRATIVE IS ON A CONTENTIOUS MEDIATION
IT WILL COMMENCE ON TUESDAY 5 OCTOBER 2021 – A WORK SURGE HAS INTERVENED.