Challenge to Arbitrators

CHALLENGE TO ARBITRATORS

On Thursday December 10th 2014, CIArb London Branch held a seminar entitled “Challenges to Arbitrators”. A popular topicwith top speakers generated very high attendance;Mishcon de Reyagenerously hosted. The panel comprisedthe new Director General of the LCIA, Jacomijn van Haersolte-van Hof, the well-known Dr. Julian Lew and Karel Daele, head of Mishcons’ international arbitration group, and Margaret Bickford-Smith QC, London Branch Chair, moderated discussion.

Jacomijn van Haersolte-van Hof extolled the LCIA for its transparency and its serious approach to the issue of challenges.She explained that LCIA panels give reasoned decisions, and LCIA has a system for challenges to emergency arbitrators requiring exceptional speed. She emphasised how few challenges succeed – 4% of the challenges at the LCIA, and 8% at the ICC.The LCIA does not cover the costs of a challenge in its initial fee and so can afford to address the issue properly. The panel is assembled from current or past officers and has a wide discretion, including as to costs, in its approach to procedure and decision.

This was followed by Dr Julian Lew QC, known to a wide circle of members, who discussed the way in which members of a tribunal are put together – knowledge, reputation, approved-listmembership– and then institutional choice. Dr Lew considered the issue of members of the same chambers as arbitrators and counsel in an arbitration, a problem that is becoming less amenable to the traditional English unconcern about conflicts, and increasingly problematic,as chambers get larger and more corporate, and develop outlier chambers in Europe and the Far East.

Finally Karel Daele noted how the topic is of increasing interest, and explained that in practice challenges require courage, place pressure on the advocatesin terms of risk of failure, and are not brought lightly. Set in overall context, he argued, they do not take up as much time as is sometimes suggested.

An enthusiastic and lively debate ensued, running well over time. Some pointed out how in jurisdictions where challenges can be taken on to court this extends matters, saying although most rules permit the tribunal to carry on nevertheless, theyremained concerned.

The speakers and attendees adjourned for a splendid drinks reception provided by Mishcons.

2014 - 12 - 10 - LDN BRANCH CONFCE - CHALLENGE TO ARBITRATORS 1