Substantial injustice The court followed the test in Alfred Uwe Maass v Musion Events Limited [2015] EWHC 1346: “there is substantial injustice if it can be shown that the irregularity in the procedure caused the arbitrators to reach a conclusion which, but for the irregularity, they might not have reached, as long as the alternative was reasonably arguable.” On the facts of this case, the court found that it was very likely that if the arbitrator had raised the question of obtaining a further opinion on the status of the RSTP, Fleetwood would have made further submissions, leading to a real prospect that the arbitrator would have concluded that the RSTP did not apply. Setting aside versus remitting Instead of setting aside the award, the court remitted it to the arbitrator for reconsideration, based on the following reasons: i. Section 68(3) provides that the court must not set aside the award unless satisfied that it would be inappropriate to remit it to the arbitrator. ii. Remitting the award for reconsideration of the part relating to the RSTP only would avoid reopening the rest of the award and thus save costs. iii. The irregularity, although material, was within a narrow compass. The parties would be able to make submissions and provide evidence on the questions raised by the arbitrator with the FA. iv. There was no suggestion of bias, nor any good reason to challenge the arbitrator’s professionalism. There was no reason to believe that if the award was remitted, this would compromise his future conduct of the reference. Comment This case sends a clear message to arbitrators regarding the interpretation of the general duty to act fairly and impartially under section 33(1) of the Arbitration Act. Although the duty may appear simple, the conduct of the arbitration must be approached with great care, since any lack of transparency, such as independent enquiries to elicit opinions or information without notice to the parties, may amount to a breach of the duty, and thus to a serious irregularity. The authors would like to acknowledge the assistance of Linh Dao, intern at CMS London, in preparing this article.
About the Authors
Richard Bamforth Partner, London Head of Arbitration Group
Liz Williams Professional Support Lawyer, London
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