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CODE OF CONDUCT

LEGAL

One of the many hats I wear is that of member of the Professional Conduct Committee for the Chartered Institute of Arbitrators, writes Sue Lindsey. We deal with complaints by the public of professional misconduct by a member of the institute. It is the nature of the beast however, that most complaints are made by a party to an arbitration about the tribunal that decided their dispute.

It is, of course, a rare arbitrator who manages to please all of the parties all of the time. Most disputes that go the distance end with one party being successful and the other being far from happy.

Irrespective of the merits of the case, it is only human to lash out at the perpetrator of your perceived misfortune and complain bitterly about their conduct of the case, their treatment of the evidence and, inevitably, their decision.

But finding against a losing party is not, in itself, professional misconduct and time and again complaints are found to be no more than an attempt to appeal the arbitrator's award by the back door. This raises another point.

While parliament has conspired to restrict appeals against arbitrators' decisions, it is still possible, provided that an appeal is made within 28 days. It turns out that not a lot of people know that. By the time they realise they may have grounds for appeal, they have run out of time.

The need to move swiftly to challenge an arbitrator's award was emphasised in the recent case of Sinclair v Woods of Winchester (Judgment 14.7.05).

Mr and Mrs Sinclair found defects in the swimming pool complex built by the defendant contractors. They referred their claim for repair costs of over £200,000 to arbitration. The arbitrator's decision was not to the Sinclairs' liking and they applied to the court to have the award set aside and the arbitrator removed.

They alleged that the arbitrator was guilty of 'serious irregularity'. They said he had misconducted the hearing and had produced a decision that was 'confused and contradictory - so that the entire award was one big ambiguity from beginning to end'. As the judge put it, 'they did not pull any punches'. But removing an arbitrator is a serious step and is only taken in extreme cases, such as that where the arbitrator was found to be 'eccentric, autocratic and obsessive'. Furthermore, an aggrieved party should complain of arbitral misconduct 'forthwith' or permanently lose their right to object. You are not allowed to keep your complaint up your sleeve to produce it only in the event of an unfavourable decision.

You must speak up or forever hold your peace.

This is where the Sinclairs went wrong. They said nothing at the time but instead sought to blame the arbitrator for events, particularly delay, for which, on subsequent analysis, they were responsible. To cap it all they had waited one day longer that the maximum period allowed before making their application. While the judge recognised that the Sinclairs were unhappy, he found that they had only themselves to blame.

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