The Chairwoman now needs to meet with her Board with three issues to discuss. First, what has happened. The Chair needs to share with the Board the sequence of events in a factual, methodical and non-inflammatory manner. She does that – methodically going the facts one by one. The Board – with the IBM and the TBM present – listen. They have no questions. The Chair then makes her second point – her view about the incident. She is critical of the ICB; says he has acted incorrectly and his error has consequences for himself, the Board, the parties, the Trade Association that appointed him and generally to the status of arbitration.
At the same time, the Chair says that the ICB is very contrite, apologetic and self-critical. He was, in her words, naïve, not deceitful. The ICB then speaks in the same vein. The issue now, however, is not his short-sighted indiscretion but the consequences to the arbitration.
The Chair suggests that the Board has two options. The first, which she quickly rules out, is to say nothing and continue the arbitration without pause. She has two reasons why she feels disclosure to the parties is necessary. First, the incident has happened and the encounter may well have been seen – the cat is out of the bag. Second, the Chair’s duty is to the parties as well as to the Board. There is a third calculation – that if she and the Board say nothing and the matter is subsequently raised by either of the parties, the judgment of the Chair will be called into question.
She then informs the Board of her proposed course of action; – she calls the Parties in, and the Observer and, significantly, the transcribers so that what she says is on the record. And this is what she proposes to say.
27 SEPTEMBER 2021
THE CHAIRWOMAN SPEAKS