18 Nov 2019
(Above image: L-R: Brian Williamson; Karina Albers; Paul Rose; Dr Miriam Goldby; James Clanchy)
An examination of the particular contribution of non-lawyer arbitrators.
On Wednesday 13 November 2019, CIArb’s London Branch held a joint seminar with the London Maritime Arbitrators Association on 'Non-lawyer Arbitrators: Expertise and Perspectives'.
This seminar looked at what non-lawyers bring to arbitration and whether the arbitral community is in danger of losing their expertise and perspectives.
Paul Rose C.Arb FCIArb, Chair of the London Branch, introduced the speakers and welcomed attendees.
Brian Williamson C.Arb is a Full Member of the LMAA, a master mariner and a solicitor. He considered the difference between arbitrators from a legal background and those from an industry background. He considered that lawyer-arbitrators tend to focus on identifying the legal mischief and applying the law to it i.e. the legal process resolves the dispute. Non-lawyer arbitrators tend to focus on the evidential aspects of the dispute, using their knowledge of technical and commercial practice and usage. They are less dependent on legal argument to understand the context of the dispute, and are very well equipped to identify gaps in the evidence and to ask pertinent questions. They identify issues quickly, and so save costs. He noted that there are red lines that a non-lawyer arbitrator must recognise – it is important that the arbitrator does not make an award based on specialist knowledge not argued by the parties.
Dr Miriam Goldby is Reader in Shipping, Insurance and Commercial Law at Queen Mary University of London. Research at Princeton has established that the ideal arbitration involves participants of different professional backgrounds, race and gender, to ensure a diversity of cognitive tools i.e. how information is perceived and analysed. LMAA non-lawyer arbitrators interviewed identified that they are well-placed to sift out irrelevant evidence, and identify whether implied contractual terms are required to reflect commercial reality. Dr Goldby reported that of the 31 LMAA Full Members, only eight were from a pure legal background without other maritime experience. Case law contains some good illustrations of the efficiencies achieved by the use of specialist knowledge (e.g. The Pamphilos ). It has been held that a request for further submissions triggered by specialist knowledge is not a procedural impropriety (Latvian Shipping v ROSNO .)
Karina Albers FCIArb is an Aspiring Full Member of the LMAA and mediator, and was previously in the chartering, trading and shipbroking business. She reflected that historically, even up to the mid-1960s, many disputes in the maritime world were settled by peers at the Baltic Exchange without the involvement of lawyers. The attractiveness of non-lawyer arbitrators for parties is that they tend to get straight to the main point, they are more practical and likely to be numerate. They are practical and have a high level of expertise. This combination results in faster and cheaper proceedings. Non-lawyer arbitrators are selected because they are likely to understand commercial motivations and realities, including what parties may be trying to hide.
James Clanchy FCIArb, organiser of the event, is an Aspiring Full Member of the LMAA, an arbitrator, solicitor and a former Registrar of the London Court of International Arbitration. He considered the increasing regulation of arbitration, which has tended to favour lawyer-arbitrators, and asked whether non-lawyer arbitrators might become an endangered species. Denmark requires arbitrators to have a law degree, and Russia and India have introduced requirements for professional qualifications. He felt there was a divergence between academic commentary, which suggests that international arbitrators are an elite group mostly comprised of lawyer-arbitrators, and the reality of the parties’ choice of arbitrator in marine disputes. He noted that the forthcoming UK Supreme Court’s decision in Halliburton Company v Chubb Bermuda Insurance Ltd, on apparent bias in a small pool of arbitrators, will have important implications for non-lawyer arbitrators.
There followed a thoughtful Q&A session, where it was noted that non-lawyer arbitrators tend to undertake some training on process (such as that provided by the CIArb). It was recognised by speakers and attendees that specialist knowledge must be used carefully in order to avoid challenges of procedural impropriety. A drinks reception was kindly provided by legal process software provider Opus2.
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