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Arbitration, Interference of the Court

Arbitration Clauses

Arbitration, tribunal shall act fairly and impartially
Last updated: 21-Jun-2015

Waller LJ in The Magdalena Oldendorff [2008] 1 Lloyd’s Rep. 7 at para 42 stated as follows:

If an arbitrator appreciates that a party has missed a point then fairness requires the arbitrator to raise it so that the party can deal with it.

Per Coulson J in F Ltd. v M Ltd. [2009] 1 Lloyd’s Rep. 537 at para 33:

It is not, I think, for the arbitral tribunal to hunt through the contract and find other ways in which the claimant’s claim might be put, and then offer the claimant a further opportunity to make submissions on any provision thereby identified. In an adversarial system it is for the claimant to identify the ways in which it puts its case.

ED & F Man Sugar Ltd v Belmont Shipping Ltd [2011] EWHC 2992 (Comm) per Teare J at paras 20-21:

20 I am unable to accept that, where a tribunal has decided the issue placed before it and given effect to a concession made by a party, that party can claim to have suffered a substantial injustice because it has not been alerted to an argument that it could have made a more favourable concession. It can hardly be said that giving effect to a concession is an example of "an extreme case" which "justice calls out" to be corrected. The arbitrators had before them a concession made on behalf of an experienced charterer.

21. Arbitrators are not barred from asking a party whether it has considered raising a different case from that which it has advanced but section 33 of the Arbitration Act 1996 does not oblige them to do so. As Mr. Young observed they often do so when there is an oral hearing. Such questions may be asked by a tribunal anxious to understand the basis upon which a case is being advanced. Such questions may also be asked where the arbitration is on documents alone. But in such cases the parties are often concerned to keep costs to a minimum because the amount in dispute is modest. In such circumstances it is understandable that a tribunal will be reluctant to ask a party, which has put in a detailed submission in a modest case, whether it wishes to run a different case. A tribunal may also have in mind the observation of Colman J. in Pacol v Rossakhar [2000] 1 Lloyd’s Rep. 109 at p.115 that where arbitrations are conducted on documents alone it is particularly important that arbitrators should be alive to the dangers of introducing into their awards matters which have never been in issue between the parties. If they do introduce such matters they must give the parties an opportunity to address such matters and if necessary to adduce further evidence with regard to them. The giving of such an opportunity will add to the costs of a modest case. These considerations serve to emphasise why the present case can hardly be said to be an extreme case which justice calls out to be corrected.

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