London Maritime Arbitration

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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 a

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quasi-judicial status.7 However, this analysis based on contract and status may not explain all aspects of an arbitrator’s relationship with the parties. If the parties have made no agreement as to the arbitrator’s fees, then an arbitrator’s statutory right to reasonable fees and expenses is based on principles of restitution: he is entitled to reasonable remuneration for services provided to the parties.8 If there is no valid arbitration agreement between the parties, and a party objecting to the tribunal’s jurisdiction has not entered into any contractual relationship with the arbitrator, that party may nevertheless become liable for the arbitrator’s reasonable fees and expenses under restitutionary principles.9

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 “commercial

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man” or “engaged in the shipping trade” would almost certainly cover a full member of the LMAA engaged in arbitration as his principal occupation.12 “Commercial man” has a broad meaning except that it excludes practising lawyers.13 The term “commercial man conversant with shipping” would require the arbitrator to have some experience in the shipping trade. If an arbitrator was suitably qualified at the date of appointment, then a subsequent change of job, or retirement, would not in itself disqualify him.14

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.

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