There is an issue for the Chair. She is on notice that a fellow member of the Board has been seen having a cocktail drink with an Observer attending the Appeal who is a prominent employee of Respondent Buyers.
A storm in a teacup or something to be taken seriously? Is it an event that you can safely disregard or is it something that could come back to haunt you – possibly after the award is published?
First things first – do you speak to the Icelandic Board member (IBM) to find out what has happened or, without speaking to him, do you go to the two unaware Board members and inform them that a problem has arisen. Answer – you need to know more and you need a session with the IBM to learn more about the incident. The problem here is that whilst you may be tempted not to disclose how you came by the information, you would do better to let the IBM know that it was the Turkish Board Member (TBM) who brought the matter to your attention and that in doing so she was acting in the best possible manner and in accordance with good arbitral practice.
The burden is now on the ICB to explain the circumstances of the cocktail encounter. It emerges that the Observer contacted IBM. They had met on a training course and maintained a social relationship. The conversation had been quite innocent – social chit-chat – with no reference to the arbitration.
You listen with care and assess the body language. Your conclusion is that the encounter was innocent but that IBM has been quite naïve. And that his explanation cannot be the end of the matter because lawyers for the appellant were in the same cocktail bar at the same time. You have to presume – it being a small cocktail bar – that appellant’s lawyers viewed the encounter.
EPISODE 4 – 24 SEPTEMBER 2021
THE CHAIR DISCUSSES WITH THE BOARD.