London Maritime Arbitration

Clare Ambrose; Karen Maxwell and Michael Collett KC

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CHAPTER 12 Procedure and evidence

A. Introduction

12.1 Flexibility and privacy are among the main advantages of arbitration over litigation. Unlike court proceedings, there are no formalised rules of practice binding the parties or the arbitrators: procedure is governed by the parties’ agreement and certain essential requirements of procedural fairness. Arbitration should therefore be able to provide the most efficient and convenient procedure for resolution of any particular dispute. However, it can become unduly lengthy and expensive if heavy interlocutory disputes arise or unnecessary evidence is introduced. A fine balance must be maintained between conducting an arbitration efficiently and preserving each party’s right to a fair opportunity to present its case and meet the other side’s case. This balancing exercise forms the basis of the central mandatory provisions of the 1996 Act.

B. The source of control over procedure

12.2 There are three principal sources of the tribunal’s power to control procedure:

• The tribunal’s duties arising under the central mandatory provisions of section 33 of the 1996 Act, as supplemented by the parallel duties placed upon the parties by section 40.
• The agreement of the parties, including any terms governing the arbitral proceedings, such as the LMAA Terms.
• The powers conferred by the 1996 Act in the absence of agreement, in particular section 34.

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12.3 It is important to recognise that one of the aims of the 1996 Act was to strengthen the position of the arbitral tribunal, making it the master of procedure, subject, of course, to the mandatory provisions of the Act and any agreement concluded by the parties.1

C. Mandatory duties of the tribunal and of the parties

Mandatory duty of the tribunal

12.4 Section 33 of the 1996 Act provides that:

(1) The tribunal shall
- (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
- (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
(2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.

12.5 Section 33 is one of the central provisions of the 1996 Act, and may be viewed as the practical implementation of the general principles set out in section 1, in particular section 1(a), which provides that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”. Section 33 is intended to set out minimum standards which are to apply in all arbitral proceedings. For this reason, the provision is mandatory, and the parties may not contract out of it. As the DAC put it:

… we fail to see how a proceeding which departed from the stipulated duties could properly be described as an arbitration… It seems to us that the public interest dictates that [section] 33 must be mandatory, i.e. that the parties cannot effectively agree to dispense with the duty laid on arbitrators under [section] 33. In other words, they cannot effectively agree that the arbitrators can act unfairly, or that the arbitrators can be partial, or that the arbitrators can decide that the parties (or one of them) should not have a reasonable opportunity of putting his case or answering that of his opponent, or indeed that the arbitrators can adopt procedures that are unsuitable for the particular circumstances of the case or are unnecessarily slow or expensive, so that the means for resolving the matters to be determined is unfair.2

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