P v Q & Ors

An arbitrator must personally exercise independent judgment, but may use a tribunal secretary for preparatory and administrative work, including analysing submissions and drafting procedural orders. The question is whether the arbitrator has abrogated or impaired the non-delegable decision-making function, not whether assistance has been provided.

A co-arbitrator may properly review and approve drafts prepared by the chair without delegating adjudicative responsibility. Removal under Arbitration Act 1996, section 24 requires both improper conduct and substantial injustice. Substantial injustice requires concrete or substantive prejudice; loss of confidence alone is insufficient.

The claimant applied under section 24(1)(d)(i) of the Arbitration Act 1996 to remove two co-arbitrators from an international arbitration. It alleged improper delegation to the tribunal secretary, indirect delegation through the chairman, inadequate supervision of the chairman, and negligent misrepresentation about the secretary’s role.

The allegations arose from three procedural decisions, the secretary’s time records, a misdirected email and correspondence describing the tribunal’s working arrangements. The LCIA Division had rejected the delegation complaints but removed the chairman on a separate impartiality ground. The central issues were whether the co-arbitrators had failed properly to conduct the proceedings and, if so, whether substantial injustice had resulted or would result.

1. Application dismissed. The claimant failed to establish that either co-arbitrator had failed properly to conduct the proceedings within section 24(1)(d)(i) of the Arbitration Act 1996.
2. Each arbitrator must bring personal and independent judgment to the decision, consider the parties’ rival submissions and exercise reasonable diligence. That personal adjudicative function is non-delegable. The use of a secretary is not itself improper. The secretary may organise papers, conduct legal research, analyse submissions and draft procedural orders, provided the tribunal retains ultimate authority and exercises proper supervision.
3. It was proper for the co-arbitrators to consider the submissions, leave the chairman to prepare draft procedural decisions, and review and approve or amend those drafts. Article 14.3 of the LCIA Rules also permitted delegation of procedural rulings to the chairman alone. The time spent by the co-arbitrators was sufficient in light of the nature and limited controversy of the three decisions.
4. Best practice may be to avoid asking a secretary to express views on the substantive merits, because of the risk of inappropriate influence. But departure from best practice does not itself establish a failure under section 24. The evidence showed no improper delegation by the chairman, and the misdirected email was reasonably explained as a request for a procedural status update.
5. The indirect delegation argument was legally incoherent. The co-arbitrators had entrusted the chairman with preparing drafts in fulfilment of their own functions, not in delegation of those functions. A co-arbitrator who acts properly is not liable merely because another tribunal member may have acted improperly.
6. The co-arbitrators had no personal, non-delegable duty to supervise the chairman’s management of the secretary. Nor was there a sufficient representation that the secretary had performed no tasks. The misrepresentation claim was also barred by section 24(2), because it had not first been raised before the arbitral institution.
7. In any event, substantial injustice was not established. It requires concrete or substantive prejudice and cannot be assumed. The claimant did not show that the decisions might have been different. The reconstituted tribunal’s confirmation of the decisions under section 27(4), without the secretary’s involvement, was additionally fatal to the claim of substantial injustice.