The losing Respondent in an ICC Arbitration with the seat in London challenged the Award on the grounds of ‘serious irregularity’ and argued that as one of the arbitrators had acted inappropriately, it should be set aside and not remitted back to the arbitrators. Lastly, the judge in Symbion Power LLC v Venco Imtiaz Construction Co  EWHC 348 (TCC) considered whether the report of the challenge in court should be anonymised.
The Respondent’s application was based on section 68(2)(d) of the Arbitration Act 1996, which defines serious irregularity as a ‘failure by the Tribunal to deal with all of the ‘issues’ that were put to it’ if the court considers that it ‘has caused or will cause substantial injustice’. In its judgment, the court revisited the decision in Secretary of the State for the Home Department v Raytheon Systems Ltd  EWHC 4375 (TCC) which drew a distinction between ‘issues’ and arguments, points, lines of reasoning or steps in an argument. Conversely, an issue is a matter that is essential to a decision reached and it must have been put to the Tribunal. The Respondent listed four aspects of its defence which it argued had not been dealt with but the court concluded after careful analysis of each that none of the complaints were justified.
Bearing in mind that the court had decided that there was no serious irregularity, the court did not have to decide whether to remit the Award back to the arbitrators for reconsideration or, as the Respondent argued, set it aside. However, because the Respondent’s argument was based upon evidence of inappropriate behaviour by one of the arbitrators, the judge considered that this was a matter of such concern that it should be addressed in the judgment.
The court had heard that some two years before the Final Award, the arbitrator appointed by the Respondent sent the Respondent’s counsel an email marked “HIGHLY CONFIDENTIAL: NOT TO BE USED IN THE ARBITRATION” and not copied to the other party or arbitrators. The email stated that it was sent on the explicit condition that it could not be referred to in the arbitration and went on to express highly negative views about the Chairman, stating that the author would encourage the Chairman to resign. The Respondent’s Counsel replied saying that it did not feel the need to discuss the matter but would keep the confidence.
The Chairman did not resign and the arbitration proceeded to a Final Award. The Respondent then deployed this to argue that the ‘internal conflict’ on the Tribunal meant that remission was inappropriate so it should be struck out instead.
The judge expressed her astonishment that the email was sent as once the Tribunal had been appointed, it was wholly inappropriate for an arbitrator to communicate with one party without notice to the other members of the Tribunal and the other party. She said that such communications may give rise to concerns that the arbitrator is not acting fairly or impartially for the simple reason that it creates the impression of a close relationship between the arbitrator and the party. Requiring the communication to be kept confidential does not remedy the problem, and if anything, it highlights the arbitrator's awareness that it is a communication he should not be having.
However, despite this, the judge was reluctant to set aside the Award, commenting that the Tribunal appeared to have worked effectively together for two years and whilst the disclosure of the e-mail might have created a somewhat awkward working environment, it was not something that experienced, professional people could not deal with.
Having provided the parties with a draft of the judgment and before handing it down, the judge herself raised the issue whether it should be anonymised as it revealed the content of an earlier related arbitration Award. However, she restated that there is a strong public interest in the publication of judgments concerning arbitrations because of the public interest in ensuring the appropriate standards in the conduct of arbitrations to be weighed against the parties’ legitimate expectations that arbitrations are confidential. After hearing argument she concluded that her concerns about publicity were misplaced as the related Award was not confidential.
The decision relating to both ‘serious irregularity’ and the arbitrator’s inappropriate behaviour reflects the court’s support for arbitration and its reluctance to interfere.