It sounds like another "thou shalt not", doesn't it? And just like lots of other "thou shalt nots", this moral principle gets blasted to smithereens by arbitrators because of another useful beacon: "Thou shalt keep a sharp eye over your shoulder and keep your backside well covered."
What I am talking about is the weakest link in arbitration; it is not talked about much, it is sinister and it is real. It is the dreadful fear in the mind of an arbitrator of being removed, sacked, fired, booted out by the High Court during the course of an arbitration. Sinister because there is a real possibility that having one eyeball fixed on their backside, the arbitrator will take their other eyeball off the "shalt not". If arbitrators fret about being personally attacked and threatened with the sack, I am damned if they are free from outside pressure, or free from fear of criticism.
The balloon went up in the arbitrator's world when civil engineer arbitrator John Phillips was removed for misconduct last November. The case was Miller Construction vs James Moore Earthmoving. The Court of Appeal reinstated him. That court was clearly worried by the removal, partly because of the effect on his reputation, and partly because the earlier judgment was being "relied upon in other proceedings in support of allegations based upon alleged misconduct of arbitrators".
Damn good job the Court of Appeal did reinstate him, because other arbitrators in the field were in fear of the same fate. John Phillips' experience is not one that other arbitrators want to go through.
And there is the nub of my argument. An arbitrator under pressure is likely to adjust their decision to avoid criticism. Wait a moment. Every arbitrator will say no to that point. They will stand shoulder to shoulder, saying that the fear of public ridicule in a High Court judgment, of having a reputation bludgeoned to death, of not being appointed as arbitrator ever again is courageously pushed out of their mind. Trumpets will blast out the word "independence". But, hell's bells, I tell you this: arbitrators have to make choices every inch of the way to reaching their decision and you can't convince me that fear of removal plays no part in their thinking.
If the route to appeal an arbitral award is blocked by statute, the appeal will be dressed up as a misconducted arbitration – an attack on the arbitrator
This business of removal for misconduct is not necessarily about immoral behaviour. It isn't getting three sheets to the wind during the short adjournment, nor carousing with counsel for the claimant at Ronnie Scott's. More often it is a desperate attempt by one party to an arbitration to get put right what it perceives to be the arbitrator's error of law or error of fact.
In Balfour Beatty vs Kelston Sparkes, recently decided, Balfour attacked on grounds of misconduct by characterising the decisions of the arbitrator, which went against them, as "failing in fairness". In other words, it tried to nullify the award by criticising the way the arbitrator conducted the arbitration, such that "the conduct was such as to destroy confidence in the ability of the arbitrator to decide the matter fairly".
This was said of one of the most senior civil engineering arbitrators in the land, Tony Canham, and of an arbitration that has been going on – wait for it – for 10 years. The judge said that Mr Canham had acted throughout with conspicuous fairness to both parties. He was not removed.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on info@tonybingham.co.uk.
