Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

29 December 2023


This is where we had reached in Episode 3

“But the afternoon session throws up more problems. The Lady Arbitrator asks three questions but still at some length. The Heavyweight’s body language and occasional mocking sigh makes clear his objection to the Lady’s questions. Now the Chair is trying hard not to get tetchy with the discord. It is something he can only address in the Retiring Room. He knows he has a problem and soonest he enters the Room he addresses the Heavyweight and the Lady. He picks his words with care and speaks at the right speed and with the appropriate emphasis.

The Chair concludes but back in the Hearing room problems persist. Now what should the Chair do? What are his options? How far can he go?”

Clearly he is under pressure. He is experienced, knowledgeable, and alert. He is a safe pair of hands but things are beginning to get out of control. The Heavyweight has become increasingly assertive. The Lady Arbitrator is less of a problem and manageable.

The Chair considers having a one-to-one quiet word with the Heavyweight. He can be more direct, say what is on his mind and fix the Heavyweight with a steely look. He warms to the idea. He thinks it will work. He begins to draft – in his mind – what he might say to the Heavyweight. But something is gnawing at him and is making him feel uncomfortable. It is the thought of having a private word with one member only of a three person Tribunal. Can he do it? A ‘private’ word goes against the grain of good Tribunal practice

The Chair is in uncharted waters. He has never been faced with this dilemma for two reasons; first, matters rarely reach this point of conflict in Tribunals or Boards, and second, arbitrators instinctively know that a private one-to-one word with just one arbitrator offends the convention that all matters are discussed openly and there are no secrets among the Tribunal.

But the Chair recalls that there have been occasions when he has travelled back to his home in Kent with a fellow member of a Tribunal and often shared a thought about the issues that arose during a hearing. Isn’t that a private conversation which offends the convention of open and above board arbitrator exchanges?

The answer is ‘No’ because there is a difference between a casual word between two arbitrators which will be reported to the third arbitrator when the Tribunal resumes the following morning. And, the circumstances in the present arbitration when the Chair wants to speak firmly and clearly to the Heavyweight but in confidence. The Chair concludes he cannot have a private read-the-riot-act meeting with just one arbitrator. Whilst a direct and private word between Chair and Heavyweight may well work, it offends a key principle – that exchanges between Tribunal members must be shared and not confined to just two of the three Tribunal members.

Back to the drawing board for the Chair. And a better solution takes shape.





Submit a Comment

Your email address will not be published. Required fields are marked *

You May Also Like…