Arbitration Law Monthly

The nature and scope of arbitral confidentiality remains uncertain. There are numerous judgments on the matter, but the analysis varies between them. It does seem to be established that a party to arbitration proceedings is entitled to use arbitration documents to bring a claim against a third party where such use is reasonably necessary. But is that right unrestricted or does it rest upon the permission of the arbitrators (where the arbitration remains in existence) or the court?

Section 24(1)(a) of the Arbitration Act 1996 provides for the removal of an arbitrator by the court where circumstances exist that give rise to justifiable doubts as to his impartiality. The section may be triggered in two ways: where the arbitrator’s relationship with one or other of the parties is such that there is potential bias; and where the arbitrator’s conduct of the arbitration indicates that he is not treating the parties equally.

Under section 57 of the Arbitration Act 1996 (often replicated by institutional arbitral rules) a tribunal has the right under the “slip rule” to make corrections in respect of clerical errors or omissions. Union Marine Classification Services LLC v Government of the Union of Comoros [2015] EWHC 508 (Comm) is a rather curious case in which the arbitrator did make amendments, but his right to do so was challenged on jurisdictional grounds under section 67 of the 1996 Act rather than on the basis of serious irregularity under section 68.

In Glencore International AG v PT Tera Logistic Indonesia; Glencore International AG v PT Arpeni Pratama Ocean Line TBK [2016] EWHC 82 (Comm) the question before Knowles J was the scope of the reference to arbitration. The arbitration notice referred to “all disputes” and the question was whether that phrase encompassed counterclaims not at the time made. Knowles J held that it did, but refused to be drawn on the question whether the alternative phrase “all claims” operated in the same way.