Additionally, section 69(7) provides that the court should not exercise its power to set aside an award in whole or in part unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. The firm argued that it had lost confidence in the arbitrator given his mistakes. Additionally, they argued that ‘stinging criticisms’ made by a judge in respect of the arbitrator's manner of dealing with an issue in an appeal of another aspect of the dispute should also be taken into account, particularly as the arbitrator had flouted the judge's decision and embarked on a 'frolic of his own'. Conversely, the retired partner refuted the criticisms of the arbitrator and argued that an error in law did not merit setting aside the award so remission was appropriate. Referring in particular to the decision in Fence Gate – v – NEL Construction Ltd [2001] 82, Rosen J decided that the principle to apply in determining this issue was whether an objective bystander might reasonably conclude that one of the parties will not obtain a fair and impartial hearing. In determining that setting aside was not appropriate, Rosen J decided that it was notable that the grounds of the application were an error of law and not misconduct or irregularity and the firm did not raise any grounds for impugning or seeking to cast doubt on the impartiality of the arbitrator. Rosen J concluded that there was no evidence to impugn or cast doubt on the arbitrator’s impartiality so there was no justification for setting aside the award and having regard to the fairness between the parties and the primacy of the arbitration process it was appropriate to refer it back to the arbitrator for reconsideration. Rosen J noted that to find remission inappropriate would require there to be a real risk that, even with the benefit of the Court’s judgment as to how to proceed, the arbitrator would still be consciously or unconsciously biased against the firm. Implications for the future? Clearly this arbitration has been hard fought at every corner causing it to drag on but the very fact that it has been going on for eight years and relates to matters 15 years ago suggests that something has gone badly wrong with the process. At one level it is not surprising that one of the parties had lost confidence in the arbitrator but if there is any lesson to be learnt from this it must be that an application to set aside an award will need evidence of some misconduct or irregularity and not just a loss of confidence in the arbitrator’s ability.