What would you do with an undisciplined, disordered or irresponsible arbitrator?
In 2015, I represented an Iranian Claimant in an ad-hoc arbitration against a Spanish Respondent. It was a sale contract for dried fruits and the arbitration agreement was as concise as possible:
Any dispute arising out of or in connection to this contract shall be resolved by one or three arbitrators. The seat of arbitration shall be in Istanbul and the language shall be English.
Fortunately, the parties were both cooperative in conducting the proceeding. That is, although there was no reference in the arbitration clause to UNCITRAL Rules, both parties agreed that the arbitration shall be conducted in accordance with the UNCITRAL Rules 2010. Also, the parties agreed that considering the complexity and size of the case, a sole arbitrator rules on the case. Accordingly, the parties agreed on a well-known arbitration institution to act as the appointing authority. An Italian arbitrator was then appointed for the case.
From the outset of the proceeding, it became clear for the parties that the sole arbitrator was either very busy or undisciplined. He used to answer parties’ communications belatedly and without sufficient attention. At times, he used to asked questions that were already answered before by the parties which showed that there was no concentration on the case. Also, few hours before the case management session, which was scheduled weeks ago, he dropped a line to parties, informing that he cannot attend due to an unpredictable matter, which was clearly a disrespectful behavior.
As the counsel to Claimant, I had a serious concern that an irresponsible arbitrator and a disorder proceeding would harm the whole arbitration. I was also minded to solve this matter in any way before signing the Terms of Reference. At the same time, I did not want to be the sole actor or the initiator, because if he was to remain the arbitrator, any action from my side could have negatively affected my client’s position. (I will write separately on psychological influences of parties’s acts on the arbitrators’ minds).
Eventually, I decided to discuss the matter with the counsel to Respondent, off the record. I knew this was a risky solution, but I decided to go through with this for below reasons:
First, so far, the counsel to Respondent proved to be very professional;
Second, I believed any action or comment should be made jointly and not by only one side; and
Third, the Respondent had already informed that it had counterclaims and therefore, he was more than a mere Respondent who might not be very interested in efficiency of the case.
I asked the counsel to Respondent to have a call over the phone, off the record. He accepted and as I expected, he also expressed his concerns about the busy and irresponsible arbitrator. We then decided to write a joint letter to sole arbitrator and respectfully request that either he pays more time and careful attention to the case or, if for any reason is unable to do that, resign before signing the terms of reference. The letter was sent on the same day. We further agreed that if the letter was not responded appropriately or if the arbitrator did not change, we would request the appointing authority for a replacement of sole arbitrator.
The letter was effective. Although the sole arbitrator denied any sort of negligence, irresponsibility or carelessness in conducting the arbitration, from the time of this notice on, he clearly changed his approach and started to play a more active and responsible role. Also, this communication did not affect either party in an adverse way, since the parties jointly rendered such notice.
I was lucky in the case that a professional and cooperative counsel was representing the counterparty. But the matter of dealing with an irresponsible arbitrator, when the other party is not cooperative or is willing to obstacle the proceeding, is a challenging question.