В продолжении статьи, посвященной морскому арбитражу, освещаются вопросы, связанные с выбором арбитров, арбитражной процедурой, в частности, устными слушаниями, объединением дел, принятием решения по делу. При этом автор делится своими мыслями о хорошей практике использования правил ЛМАА.
Choosing an arbitrator
There are of course horses for courses, as the saying goes, and there are some cases where a lawyer or at least an arbitrator with some legal experience background may be preferable and there are other cases where a commercial man is likely to be more suitable.
A commercial man can find himself out of his depth in a dispute which requires consideration of complex legal issues or resolution of difficult issues of fact, especially when it comes to the actual in the writing of the reasoned award, whereas a legal man may sometimes fail to fully grasp the implications of certain underlying technical or commercial aspects to the matter which put the evidence and legal principles in a very different light.
One of the advantages of a two or three-man tribunal is that the composition of the tribunal may be such as to achieve a wide variety of experience and knowledge across various professions. Indeed where a three-man tribunal is used it is often common to have a commercial man (such as a former shipbroker P & I club man) along with a technical expert (such as a deck or engineering officer) and a practising lawyer. It should go without saying that the time is long past, if there ever was such time, when the appointee would be appointed with the expectation that he would decide the matter in favour of his appointor.
Conduct of the Arbitration
English law accords the tribunal a wide discretion as to the conduct of the arbitration. The exercise of that discretion is primarily directed to ensuring that the dispute shall be resolved in the speediest and most economical manner.
The procedural time-scale is agreed by the parties themselves, if at all possible, but it may be necessary for the tribunal to intervene in cases where no such agreement can be reached or where one party does not do what he has agreed to. In the event of default by one party the other party may request the tribunal to order that the default be remedied within a specified time and, if there is a failure to comply with that order, the tribunal, upon request, may make a final «peremptory order». The effect of that will be to put the defaulter on notice that the tribunal will proceed to its award on the materials before it if that final order is not complied with. If the default is not remedied, the tribunal will then make its award. If no submissions have been provided by way of defence to a claim, the tribunal will assume that the claim is denied, and an award in favour of the claimant will be made only if and insofar as the tribunal is satisfied that the claim has been sufficiently substantiated.
A small number of parties conduct their cases themselves. A larger number use claims agents or their own P and Club. For better or worse lawyers are frequently instructed and they may be from overseas – another advantage of London arbitration as opposed to London court proceedings where use of an English solicitor at very least is unavoidable. The reasonable charges of representatives of a party who is successful in arbitration will normally be recoverable, whether or not that representative is a lawyer, provided that the party is liable for the charges in question.
In the first instance applications for contentious orders should be the subject of an attempt to agree the position with the opposing party. Only if agreement cannot be reached within the time prescribed should an application be made to the tribunal.
It is now common to for the parties to communicate with each other and with the tribunal itself by email and that is of course a much easier form of communication than the rather more cumbersome procedures which would have to be used in communicating with a court — at least on anything other than an administrative matter.
The substantive proceedings in the reference usually open with detailed claim, defence and reply submissions written in letter form in consecutively numbered paginated paragraphs. These tend to be somewhat less formalistic than court pleadings and the LMAA Rule require all documents that a party relies upon to be annexed to the submissions. The submissions usually contain a great deal more legal argument and detailed presentation and discussion of the evidence and law, and opposing arguments, than one would expect to see in a court pleading.
Thereafter there are of course provision in the Rules for further disclosure and exchange of expert and witness evidence etc. though in many cases there may no need for either and it may well in many cases be possible for the matter to proceed to an award on the submissions alone.
Arbitrators are not bound to have an oral hearing, even if a party demands one although it is difficult to envisage a situation where a hearing would not be held if both parties wanted one. They are, though, bound by the general duties in s.33 of the Act. These duties include the duty to act fairly and impartially, to give each party a reasonable opportunity of putting its case and dealing with the opposite case and to adopt procedures suitable to the circumstances of the dispute by e.g. avoiding unnecessary delay and expense and providing a fair means for resolving the matters to be determined. Around 80% of the awards made by LMAA members are made on the basis of written submissions and documents only, i.e. without an oral hearing.
There are a number of places in central London that provide purpose-designed hearing rooms for arbitration (and other) hearings. The parties and the tribunal will normally liaise to reserve appropriate accommodation at one of these locations which, unlike court facilities, will have of course to be paid for by the parties as part of the costs of the reference.
Arbitrations can be consolidated but only with the agreement of all the parties; s.35 of the Arbitration Act 1996. Arbitrators cannot order consolidation, even of claims in other references between the same parties. However the power to hold concurrent hearings is afforded to the tribunal under the LMAA Terms. Where a string of related contracts (e.g. a head charter, a sub-charter and a sub-sub charter) all on London LMAA terms throw up similar issues one or more parties to a number of arbitrations may applying for this power to be used.
Who Decides the Dispute
A sole arbitrator, by definition, decides the case on his own. Where the reference is to two arbitrators, with power to appoint an umpire, the two arbitrators, if in agreement on all points, will decide the case. But if they disagree (even if only on one issue), the umpire takes over the reference and becomes responsible for reaching his own decision on all issues in the case.
Where the reference is to a panel of three arbitrators (e.g. as with the very widely used New York Produce Exchange form of time charter), the third arbitrator is normally appointed by the two original arbitrators and the decision will be that of the three-man panel. In order to save time and costs it is however common for the third arbitrator only to be appointed if an oral hearing is requested or where the existing two arbitrators, having proceeded to an award on documents alone, are unable to agree upon all or any aspect of its terms.
Similarly an umpire will need to be appointed before any oral hearing so he can attend the hearing and listen to the evidence and decide the dispute if it so happens the two original arbitrators cannot reach agreement as to the terms of their award. In practise where there is such a clause it is much better for the parties to agree before any hearing that the umpire should in fact sit as a third arbitrator, thus enabling him to participate ab initio in the decision making process, and this is what usually happens.