GOOD MORNING FROM LONDON
There are two key issues to focus upon – the first is the quality of the Chair and the second is the strength and weaknesses of the Board members. Let’s take the Chair first.
He/She steps up to the chair. It is an honour – a recognition that He/She is capable of handling the responsibility of organising the consideration of the issues in dispute between the parties. It is also a recognition that the Chair is equipped to handle the Board of arbitrators – sometimes three people, often five. All quite different people in terms of personality, character, ego, behaviour and team spirit. First question therefore – is the Chair sufficiently trained to assess each of the individual members. Does the Chair read them correctly or incorrectly?
The Chair needs to be objective, and free (completely free) of favouritism and cronyism. This is not easy. Why? People are people. We like some arbitrators, a little more than we like other arbitrators. It is natural. But being more well-disposed to one arbitrator and less well-disposed to another arbitrator cannot be allowed to affect the judgment of the Chair (or any member of the Tribunal/Board) on the issues in the arbitration.
Objectivity reigns supreme. No partiality, no “old pals act”, no preferences. All arbitrators, especially Chairs, must be fair and impartial and rigourously independent.
There are parallels here with the issue of unconscious bias. And the test here is to guard against bias or one sidedness by asking yourself the simple question Am I being fair? Am I being impartial? This is the beauty of S33. It reminds us of our duties in the simplest of language – a big thankyou to Lord Saville and Toby Landau KC for their concise and uncomplicated drafting of the 1996 Act
Arbitrators are experts. They may not like the description but they are leaders of their profession. They have a lifetime’s experience of decision making to contribute but they have “to wash their faces daily”. They need to review and reflect, and summarise strengths and weaknesses. And it is the Chair who, with subtlety and sensitivity, is the individual to keep the arbitrators up to the mark.
But back to the Chair. It is his/her name on the award. They have to be top notch with the techniques of arbitration – the nuances, the choice of words, and the structure of the reasoning. But they also have to be constantly alert to the quality of the Tribunal’s contribution. Curb the excesses, encourage the quiet ones, ensure that all Tribunal members understand the issues being discussed and that their words and their contributions are balanced, without agenda, and free of partiality.
In the next episode we will look at how the Chair can handle cracks that sometimes appear when arbitrators lose their objectivity – when to intervene and how to intervene.
NEXT EPISODE – THE CHAIR HAS A QUIET WORD