GROWING POTENTIAL FOR PROCEDURAL MISCONDUCT IN UNADMINISTERED MARITIME ARBITRATIONS
By Jayems Dhingra
The parties trying to challenge the arbitral tribunals on the grounds of “procedural misconduct” are well aware that it is an uphill battle, in view of the powers given to the tribunals under the applicable Arbitration Acts of the seats of arbitration. The underlying objectives of a party in some cases, may not necessarily be a delay tactics, but a genuine discontent with the approach adopted by a tribunal, with translucent inclination towards other party. The s24 of the English Arbitration Act, 1996 provides a comprehensive list of situations when an aggrieved party may choose to raise such a challenge, by applying to the court. However the justifiable causes if any, for intervention by the courts, are narrow.
In administered or institutional arbitrations, the applicable rules of an institution often address such concerns of the parties, through specific provisions for challenge of the tribunal, from the appointment stage, to the pre-award or closure of proceedings stage. However in maritime disputes arising out of Charterparty Agreements, based on standard forms, the default arbitration clauses are often for non-institutional or un-administered processes. In such clauses the prescribed procedure is based on the rules of some societies or associations of arbitrators. Further the time period for a party to appoint its arbitrator is normally 14 days. In case of default by one of the party to act within the stipulated timeline, the first appointing party’s arbitrator becomes the sole arbitrator. Thereafter the arbitration process is administered and conducted by the sole arbitrator, so appointed by default.
Thus the sole arbitrator has to deal with not only the administrative workload but also has to act independent, impartial, neutral and be fair in dealing with all procedural issues. The potential for an apparent bias or procedural mishaps is likely to grow if a conscious effort or self-imposed checks are not implemented by the arbitral tribunal. This Paper explores the interpretation of the terms, “procedural mishap” and “procedural misconduct” in context of recent case law. The review of some of the administered cases and non-administered maritime dispute cases will reflect on the growing potential for procedural mishap, and guidelines on how to avoid it.Download