Two recent cases provide a reminder of the fundamentals of good practice by members of arbitral tribunals, and the potentially serious consequences of forgetting those fundamentals.

In Symbion Power LLC v Venco Imtiaz Construction Company [2017] EWHC 348 (TCC), the claimant challenged an arbitral award for serious irregularity under s.68(2) (d) of the Arbitration Act 1996. The case is of interest for the Court’s comments on the propriety of arbitrator and party communications.

In mid-2014, the claimant’s partyappointed arbitrator sent an e-mail to the claimant. It was not copied to the other members of the tribunal, nor to the defendant. The subject line of the e-mail was “HIGHLY CONFIDENTIAL: NOT TO BE USED IN THE ARBITRATION”. Its purpose was to express dissatisfaction with the chairman’s conduct.

Jefford J expressed her astonishment that the e-mail had been sent. Once the tribunal was appointed, it was wholly inappropriate for one arbitrator to communicate with a party without notice to the other members of the tribunal and the other party. Otherwise, it could give rise to concerns about the arbitrator’s fairness and impartiality.

In P v Q [2017] EWHC 194 (Comm), the claimant sought to remove the two partyappointed arbitrators under s.24(1)(d) (i) of the Act on the basis that they had improperly delegated their functions to the tribunal’s secretary.

The trigger for the application was a misdirected e-mail from the chairman. It was intended for the secretary, but was inadvertently sent to one of the claimant’s paralegals. It asked for the secretary’s reaction to the claimant’s application for an extension of time.

This error resulted in a challenge before the LCIA Court to remove all three arbitrators for improper delegation to the secretary. The challenge was unsuccessful, save that the chairman was removed for other reasons. The claimant then unsuccessfully applied to the High Court for the removal of the other two.

Popplewell J held there was nothing offensive per se in an arbitrator receiving the views of others, provided that the conclusion reached was the result of independent decision-making.

Best practice was however to avoid asking a secretary to express a view on the substance of the matter which the tribunal had to decide.

The point to be taken from these two cases is the importance of any arbitrator asking the basic questions “what would the parties think if they knew what I am doing” or “how would this look if made public”. Neither of the two events above should really have occurred and represent basic failures in appreciating the duty of and upon an arbitrator. The fact that the s.68 challenge fails is not a ground for arbitral self-satisfaction: the parties incurred unnecessary costs and procedural wrangling. A cruder and more pragmatic lesson is to beware of “reply to all”!