London Maritime Arbitration
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CHAPTER 11
The arbitrator
A. The arbitrator’s status
11.1 The relationship between the parties to an arbitration and the tribunal is most commonly analysed as a contract. In broad terms this analysis is appropriate, as an arbitrator’s jurisdiction is based on consensus and an arbitrator’s appointment is properly treated as an enforceable contract.1 The contractual analysis cannot, however, fully explain the role of an arbitrator.2 For example, regardless of the terms of his appointment he is under a duty to act fairly and impartially between the parties and to adopt procedures suitable to the circumstances of the case.3 An arbitrator also enjoys immunity from claims for breach of this duty or any contractual term of his appointment.4 Furthermore, the relationship between an arbitrator and the party who did not appoint him cannot easily be analysed as an orthodox contract concluded by acceptance of an offer.5 In understanding an arbitrator’s rights and duties it is necessary to consider his judicial role as well as his contractual relationship with the parties. In Jivraj v Hashwani 6 Lord Mance endorsed the view that the arbitrator’s engagement is a sui generis agreement. 11.2 The courts have analysed the arbitral process as based on a trilateral contract existing between the two parties and the tribunal, pursuant to which an arbitrator assumes aPage 170
B. Qualifications
11.3 Anyone can be an arbitrator. No special qualification is required unless the parties have so agreed. In practice, most maritime arbitrators are experienced professional people who have worked in the shipping trade (e.g., master mariners, brokers, surveyors, superintendents, naval architects) or as commercial lawyers or P&I Club executives. A number of maritime arbitrators arbitrate full time as a profession.Qualifications required by the arbitration clause
11.4 If an express provision in an arbitration agreement relating to the qualifications or characteristics of the arbitrator is not complied with, the appointment will fall outside the arbitration agreement and the arbitrator will lack the power to make decisions binding on the parties. Although the position is not entirely clear, failure to comply with a requirement in the arbitration clause for a particular qualification or attribute might enable the other party to challenge the arbitrator’s jurisdiction on the grounds that the tribunal is not properly constituted.10 It is clear though that a party can apply to remove an arbitrator on grounds that he lacks the qualifications required by the arbitration agreement under section 24(1)(b). However, a party may lose the right to challenge on this ground if it fails to raise the objection at the first reasonable opportunity (see below on loss of the right to object). Contractual requirements relating to qualifications are also relevant in applications to court for the appointment of arbitrators.11 11.5 It is common practice for an arbitration agreement to include express requirements relating to qualifications, for example that arbitrators shall be “engaged in the shipping trade” or “commercial men”. The courts generally give these provisions a broad interpretation and deliberately avoid laying down any strict or detailed definition of such terms. The term “commercialPage 171
In The Bede
15 a ship sale agreement provided that “arbitrators and umpire shall be commercial men and not lawyers”. The arbitrators appointed a practising barrister as an umpire. Roskill J allowed a challenge to the umpire’s award, stating that although it was not necessary to consider what exactly the words “commercial men” meant or to define precisely who fell within or without them, it was clear that they did not include practising lawyers.