Legal - disclaimer: the Arbitration Act 1996: conflicts; the ‘practice of law & accountancy in an ADR context: insurance; & content reproduction.

Grant Jones - I am happy that any part of this website, which is not otherwise copyrighted, is copied. In time I hope this website will, as it is developed, become a resource centre for accountancy and arbitration so that both accountant ADR practitioners and lawyers involved in ADR wishing to appoint accountants, can use the site. In this webpage I have sought to add to the normal legal webpage, which is often no more than a disclaimer, issues of a legal nature which face the accountant arbitrator. Despite the fact that this webpage goes beyond just the mere disclaimer, it should be understood that the disclaimer applies to the whole of this website. Additionally I have added my e-mail disclaimers, whether they emanate from the gmjones.org domain, or any other domain.

Whilst money laundering may not be a major issue for arbitrators generally, it still remains an issue for other ADR practitioners, especially mediator accountants and expert determiner accountants. Mediator accountants and expert determiner accountants will inevitably be called in to consider quantum orientated disputes, and inevitably opportunities for money laundering in such disputes exists. Mediator accountants and expert determiner accountants will not only not have the limited protection afforded to arbitrators in money launching; but also accountancy professional bodies may consider the accountant bound by their own money laundering codes; this is especially the case for expert determination, which unlike mediation can be viewed as the practice of accountancy. It is hoped that the Institute of Charteted Accountants in England & Wales (ICAEW) RSS money laundering feed is of use in considering the above.

Any & all e-mails sent by me, Grant Jones, are subject to the below general following terms & conditions:

(A). All emails & any attached files to which this notice applies, are transmitted as confidential & maybe privileged, & are intended solely for the use of the individual, or entity, to whom they are addressed. The message contains, or may contain, confidential information & is intended only for the individual or entity named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail or any attachment. Please notify the sender immediately, via e-mail, if you have received this e-mail or any attachment, by mistake & thereafter delete this e-mail from your system. If you are not the intended recipient, you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information, is prohibited.

(B). Computer viruses can be transmitted via email. The recipient should check this email & any attachments, for the presence of viruses. There is no acceptance of any liability for any damage caused by any virus transmitted by this email. E-mail transmission cannot be guaranteed to be secure or error-free, as information could be intercepted, corrupted, lost, destroyed, arrive late or be incomplete, &/or contain viruses. The sender therefore does not accept liability for any errors, or omissions, in the contents of this or any message, or of any attachment, which arise or could have arisen, as a result of any e-mail transmission or attachment.

(C). To the extent relevant, the disclaimers noted in the 'website disclaimer' section, also apply to any email transmission &/or attachment.

(D). If for any reason, the reference to the email disclaimer &/or relevant information, is not noted on any individual email, but has been noted in earlier email correspondence, then it is presumed that the disclaimers, etc, continue to apply in the following emails. All email correspondence is therefore subject to this disclaimer &/or to the inclusion of any relevant information &/or link.

(E). Unless otherwise noted explicitly or implicitly, the laws of England & Wales shall apply to this disclaimer, any attachments &/or other relevant material.

Specifically e-mails sent in respect of the following firms are deemed to have the following information noted therein. The Companies (Trading Disclosures) Regulations 2008 ("the Regulations") require that various information concerning the relevant company be noted on the e-mail. Specifically, as noted in regulation 5, when multiple companies are involved, the information should ideally be "be displayed continuously". Such information is "displayed continuously" on this webpage. Further, regulation 2, requires that "Any...disclosure of information required by these Regulations must be in characters that can be read with the naked eye", and it must be presumed that the naked eye can read a web page.

(I). Arbitral Ltd.

If I (Grant Jones) have been employed as an ADR practitioner (such as an arbitrator, mediator or even possibly expert determiner) through Arbitral Ltd, the relevant arbitrants, mediants or determinants will have received a letter of engagement from Arbitral Ltd. For the purposes of the Regulations, the following information is relevant:

Name of the company: Arbitral Ltd.

Sole director: Prof Grant Meredith Jones. Company Reg. No. 6246654 VAT No: 911/2911/58

Trading address: 350 Riverside Mansions, Milk Yard, Garnet St., Wapping, London E1W 3SU

Company secretary and registered office: Munslows, New Penderel Hse., 283 High Holborn, London WC1V 7HP.

Website disclaimer.

It is in the nature of websites, many of which are experimental or constantly changing, that information published may be for test purposes only, may be out of date, or may be the personal opinion of the author. All information on this website is intended for information purposed only and does not represent legal or other advice. Users are hereby placed under notice that they should take appropriate steps to verify such information. No user should act or refrain from acting on the information contained in this website without first verifying the information and as necessary obtaining legal and/or professional advice. No representation or warranty is made whatsoever as to the accuracy of the information contained in this website, nor to any linked website. All liability for any direct, indirect or indirectly resulting from inaccuracies, defects, errors, whether typographical or otherwise, omissions, out of date information or otherwise, even if such loss was reasonably foreseeable is excluded: save for such loss as that relating to personal injury or death.

Whilst I welcome non-lawyers appearing before me as (say) accountant advocates in accountancy orientated arbitrations, parties to an arbitration ("the Arbitrants") should always consider obtaining legal advice upon all of the ramifications of the Act. More especially Arbitrants should especially consider obtaining legal advice on the following sections of the Act. If Arbitrants have not appointed lawyers, then at the very least, Arbitrants should review the Act and especially the below provisions.

(A) "Court to have regard to agreed qualifications".

"In deciding whether to exercise, and in considering how to exercise, any of its powers under section 16 (procedure for appointment of arbitrators) or section 18 (failure of appointment procedure), the court shall have due regard to any agreement of the parties as to the qualifications required of the arbitrators [Section 19 of the Act]".

ADR clauses requiring the appointment of an accountant, without a procedure for the appointment of that accountant (such as via the President of the Institute of Chartered Accountants in England and Wales presidential appointment scheme) are not unfortunately uncommon. One of the grouses of the accountancy profession is that there is no UK legal definition of an ‘accountant’. Anybody regardless of their lack of qualifications can call themselves an accountant. However I believe that a court would be keen to imply a term into any such agreement that the accountant arbitrator be qualified both as an accountant and as an arbitrator. The Consultative Council of Accountancy Bodies was established by the leading accountancy qualifications in the United Kingdom and consists of: (I) the Institute of Chartered Accountants in England and Wales ("ICAEAW"); (II) the Institute of Chartered Accountants of Scotland ("ICAS"); (III) the Institute of Chartered Accountants in Ireland ("ICAI"); (IV) the Association of Chartered Certified Accountants ("ACCA"); (V) the Chartered Institute of Management Accountants ("CIMA"); & (VI) the Chartered Institute of Public Finance and Accountancy (“CIPFA"). All the CCAB members offer ADR programmes. Therefore before considering any action under any defective arbitration appointment clause, Arbitrants may wish to approach any of the members of the CCAB for their advice and assistance. Obviously the most well-known accountancy arbitration programme is that offered by the ICAEAW.

(B) "Joint and several liability of parties to arbitrators for fees and expenses".

"(1) The parties are jointly and severally liable to pay to the arbitrators such reasonable fees and expenses (if any) as are appropriate in the circumstances.

(2) Any party may apply to the court (upon notice to the other parties and to the arbitrators) which may order that the amount of the arbitrators' fees and expenses shall be considered and adjusted by such means and upon such terms as it may direct. (3) If the application is made after any amount has been paid to the arbitrators by way of fees or expenses, the court may order the repayment of such amount (if any) as is shown to be excessive, but shall not do so unless it is shown that it is reasonable in the circumstances to order repayment...[Section 28]". One of the downsides of arbitration is that the Arbitrants have to pay for the arbitrators costs. Indeed they are jointly and severally liable under the Act for the arbitrators costs. Thus a successful Arbitrant may have to still pay the full arbitrator costs. The only respite for arbitration is that under section 28

(3) there is provision for a court taxation of arbitrators costs. Lawyers often increase the arbitrators costs dramatically by wishing to rigorously follow court procedure. Arbitrants should approach arbitration with a view to cost reduction, not cost escalation. Further Arbitrants should consider an application for security for costs whenever there is doubt that the other side cannot pay. Most arbitrator appointment acceptance provisions draw attention to this joint and several liability. However in the heat of the initial process it is often forgotten.

(C) "Immunity of arbitrator" & "Immunity of arbitral institutions".

“(1) An arbitrator is not liable for anything done or omitted in the discharge or purported discharge of his functions as arbitrator unless the act or omission is shown to have been in bad faith.

(2) Subsection (1) applies to an employee or agent of an arbitrator as it applies to the arbitrator himself...[Section 29]”.

"(1) An arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator is not liable for anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith.

(2) An arbitral or other institution or person by whom an arbitrator is appointed or nominated is not liable, by reason of having appointed or nominated him, for anything done or omitted by the arbitrator (or his employees or agents) in the discharge or purported discharge of his functions as arbitrator.

(3) The above provisions apply to an employee or agent of an arbitral or other institution or person as they apply to the institution or person himself...[Section 74]”.

This section speaks for itself; ‘it does what it says on the tin’. There is no statutory immunity in expert determination or mediation. Whilst the standard expert determination agreement excludes liability, the strength of that exclusion can always be tested. A claim by a disgruntled party in an expert determination against the expert for negligence amounts to a backdoor appeal. It is for that reason that many parties preferred the finality of arbitration and ADR practitioners favour the cast iron certainty of the statutory immunity of the Act. Invariably the threat of litigation increases costs under non-arbitration, but binding ADR methods, such as expert determination. This is notwithstanding the standard expert determination letter of engagement which excludes liability to the fullest extent possible. It is worth noting that there is a small but growing jurisprudence which indicates that mediators can also be liable in negligence.

(D) “Legal or other representation”.

"Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by a lawyer or other person chosen by him [Section 36]".

I personally am often surprised when I am appointed specifically as an accountant in an arbitration because of my accountancy skills and I am then presented by lawyers as advocates, when those advocates themselves do not understand the accountancy issues involved. Notwithstanding my specialist skill, the advocates then suggest expert opinion, more especially accountancy expert opinion, is presented. This is to my mind unnecessarily increases costs and goes to the heart of one of the benefits of ADR, being the appointment of a specialist resolver. I believe there are two reasons why accountants do not come forward as advocates. First accountants are often not in control of the resolution proceedings. The dispute has occurred and it is passed to lawyers. This is even the case in say a partnership dispute where the partnership is a partnership of accountants and the dispute is over the breakup valuation of the partnership. Second accountants are themselves loath to put themselves forward. I feel that this is unnecessary self-effacement. Third and this is perhaps the only valid reason, it is often hard in a dispute to isolate the accountancy issues from the legal issues, and if there is a legal issue, then correctly that should be addressed by lawyers. However I do not believe that this reason precludes joint advocacy: a joint team of one accountant and one lawyer acting as the advocates. What I suggest is that Arbitrants obtain legal advice especially at the commencement of the arbitration, that should not preclude Arbitrants from acting as advocates in the arbitration.

(E) "Power to appoint experts, legal advisers or assessors".

(1) Unless otherwise agreed by the parties –

(a) the tribunal may -

(i) appoint experts or legal advisers to report to it and the parties, or

(ii) appoint assessors to assist it on technical matters, and may allow any such expert, legal adviser or assessor to attend the proceedings; and

(b) the parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by any such person.

(2)The fees and expenses of an expert, legal adviser or assessor appointed by the tribunal for which the arbitrators are liable are expenses of the arbitrators for the purposes of this Part..[Section 37]. At the outset of an arbitration the Arbitrants should attempt to agree whether there will be expert opinion. As noted above I believe the ADR procedure is best conducted by experts in the field. This is subject to the proviso that the expert should also have a legal knowledge. The solution is obvious, select an expert in the field who also has a legal knowledge. To have an accountant expert arbitrator employee a legal assessor can dramatically increase costs. Contrariwise to have a lawyer arbitrator employ an expert can also dramatically increase costs.

(F) “Determination of preliminary point of law”.

“(1) Unless otherwise agreed by the parties, the court may on the application of a party to arbitral proceedings (upon notice to the other parties) determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties. An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.

(2) An application under this section shall not be considered unless –

(a) it is made with the agreement of all the other parties to the proceedings, or

(b) it is made with the permission of the tribunal and the court is satisfied -

(i) that the determination of the question is likely to produce substantial savings in costs, and

(ii) that the application was made without delay.

(3) The application shall identify the question of law to be determined and, unless made with the agreement of all the other parties to the proceedings, shall state the grounds on which it is said that the question should be decided by the court.

(4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending.

(5) Unless the court gives leave, no appeal lies from a decision of the court whether the conditions specified in subsection (2) are met.

(6) The decision of the court on the question of law shall be treated as a judgment of the court for the purposes of an appeal. But no appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance, or is one which for some other special reason should be considered by the Court of Appeal...[Section 45]”. This route, may ameliorate the problem of the accountant arbitrator not being well-versed in legal matters. However this section is arguably open to abuse in that it can be used as a delaying tactic. The Arbitrants should agree at the outset whether they wish to have the right to appeal to the Court in this regard.

(G) “Interest”.

(1) The parties are free to agree on the powers of the tribunal as regards the award of interest.

(2) Unless otherwise agreed by the parties the following provisions apply.

(3) The tribunal may award simple or compound interest from such dates, at such rates and with such rests as it considers meets the justice of the case -

(a) on the whole or part of any amount awarded by the tribunal, in respect of any period up to the date of the award;

(b) on the whole or part of any amount claimed in the arbitration and outstanding at the commencement of the arbitral proceedings but paid before the award was made, in respect of any period up to the date of payment.

(4) The tribunal may award simple or compound interest from the date of the award (or any later date) until payment, at such rates and with such rests as it considers meets the justice of the case, on the outstanding amount of any award (including any award of interest under subsection (3) and any award as to costs).

(5) References in this section to an amount awarded by the tribunal include an amount payable in consequence of a declaratory award by the tribunal.

(6) The above provisions do not affect any other power of the tribunal to award interest...[Section 49]”.

Arbitrants should be aware of this power of the arbitrator.

(H) “Settlement”.

“(1) If during arbitral proceedings the parties settle the dispute, the following provisions apply unless otherwise agreed by the parties.

(2) The tribunal shall terminate the substantive proceedings and, if so requested by the parties and not objected to by the tribunal, shall record the settlement in the form of an agreed award.

(3) An agreed award shall state that it is an award of the tribunal and shall have the same status and effect as any other award on the merits of the case.

(4) The following provisions of this Part relating to awards (sections 52 to 58) apply to an agreed award.

(5) Unless the parties have also settled the matter of the payment of the costs of the arbitration, the provisions of this Part relating to costs (sections 59 to 65) continue to apply...[Section 51].” I have seen arbitrator letters of engagement which state that the Arbitrants agree (by signing the letter of engagement) to the arbitrator having to provide an agreed award. I am unsure as to the legitimacy of such a letter of engagement. Whilst it is nice to have an agreed award, I am unsure as to why the arbitrator should claim the contractual right to demand that he be party to an agreed award. I suspect that such letters of engagement arise because the arbitrator is concerned that his costs will be overlooked in any agreed award. This is a legitimate concern. Arbitrants should therefore consider all costs in attempt to reach finality when they draft a settlement.

(I) “Form of award.”

“(1) The parties are free to agree on the form of an award.

(2) If or to the extent that there is no such agreement, the following provisions apply.

(3) The award shall be in writing signed by all the arbitrators or all those assenting to the award.

(4) The award shall contain the reasons for the award unless it is an agreed award or the parties have agreed to dispense with reasons.

(5) The award shall state the seat of the arbitration and the date when the award is made...[Section 52]”.

Most accountancy orientated arbitral institutions (such as the ICAEW) require the giving of reasons. For my own part I think the giving of reasons is an excellent discipline of the arbitrator to follow; it insures that the arbitrator addresses all the issues. However in the past the giving of reasons has led to Arbitrants seeking to avoid an award against them. Such Arbitrants have used the reasoning as the basis of an appeal. For that reason many arbitrators attach reasons to the award, but state of those reasons do not themselves form part of the award.

(J) “Power to withhold award in case of non-payment”.

“(1) The tribunal may refuse to deliver an award to the parties except upon full payment of the fees and expenses of the arbitrators.

(2) If the tribunal refuses on that ground to deliver an award, a party to the arbitral proceedings may (upon notice to the other parties and the tribunal) apply to the court, which may order that - (a) the tribunal shall deliver the award on the payment into court by the applicant of the fees and expenses demanded, or such lesser amount as the court may specify, (b) the amount of the fees and expenses properly payable shall be determined by such means and upon such terms as the court may direct, and (c) out of the money paid into court there shall be paid out such fees and expenses as may be found to be properly payable and the balance of the money (if any) shall be paid out to the applicant.

(3) For this purpose the amount of fees and expenses properly payable is the amount the applicant is liable to pay under section 28 or any agreement relating to the payment of the arbitrators.

(4) No application to the court may be made where there is any available arbitral process for appeal or review of the amount of the fees or expenses demanded. (5) References in this section to arbitrators include an arbitrator who has ceased to act and an umpire who has not replaced the other arbitrators.

(6) The above provisions of this section also apply in relation to any arbitral or other institution or person vested by the parties with powers in relation to the delivery of the tribunal's award. As they so apply, the references to the fees and expenses of the arbitrators shall be construed as including the fees and expenses of that institution or person.

(7) The leave of the court is required for any appeal from a decision of the court under this section.

(8) Nothing in this section shall be construed as excluding an application under section 28 where payment has been made to the arbitrators in order to obtain the award...[Section 56]”. This section should be further considered in the context of Arbitrant joint and several liability for the arbitrators costs.

(K) “Effect of award”.

“(1) Unless otherwise agreed by the parties, an award made by the tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any persons claiming through or under them.

(2) This does not affect the right of a person to challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Part...[Section 58]”.

This is one of the main benefits of arbitration: finality. However it is also one of the downsides. Arbitrants should be fully aware before agreeing to and indeed commencing with the arbitral process, that the process will result in resolution finality; whether the result is in their favour or not.

(L) “Agreement to pay costs in any event”.

“An agreement which has the effect that a party is to pay the whole or part of the costs of the arbitration in any event is only valid if made after the dispute in question has arisen...[Section 60]”.

(M) “Recoverable fees and expenses of arbitrators”.

“(1) Unless otherwise agreed by the parties, the recoverable costs of the arbitration shall include inrespect of the fees and expenses of the arbitrators only such reasonable fees and expenses as areappropriate in the circumstances.

(2) If there is any question as to what reasonable fees and expenses are appropriate in the circumstances, and the matter is not already before the court on an application under section 63(4), the court may on the application of any party (upon notice to the other parties) -

(a) determine the matter, or

(b) order that it be determined by such means and upon such terms as the court may specify.

(3) Subsection (1) has effect subject to any order of the court under section 24(4) or 25(3)(b) (order as to entitlement to fees or expenses in case of removal or resignation of arbitrator).

(4) Nothing in this section affects any right of the arbitrator to payment of his fees and expenses...[Section 64].”

As in litigation, litigants even if successful usually cannot recover all of their litigation costs. The situation is the same in arbitration.

(N) “Appeal on point of law”; the “Effectiveness of agreement to exclude court's jurisdiction”; & “Commencement of arbitral proceedings”.

“(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.

(2) An appeal shall not be brought under this section except - with the agreement of all the other parties to the proceedings, or (b) with the leave of the court. The right to appeal is also subject to the restrictions in section 70(2) and (3).

(3) Leave to appeal shall be given only if the court is satisfied –

(a) that the determination of the question will substantially affect the rights of one or more of the parties,

(b) that the question is one which the tribunal was asked to determine,

(c) that, on the basis of the findings of fact in the award –

(i) the decision of the tribunal on the question is obviously wrong, or

(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and

(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.

(4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted.

(5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required.

(6)The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal.

(7) On an appeal under this section the court may by order -

(a) confirm the award,

(b) vary the award,

(c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court's determination, or

(d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.

(8)The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal.

But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal...[Section 69]”.

“(1) In the case of a domestic arbitration agreement any agreement to exclude the jurisdiction of the court under - (a) section 45 (determination of preliminary point of law), or (b) section 69 (challenging the award: appeal on point of law) - is not effective unless entered into after the commencement of the arbitral proceedings in which the question arises or the award is made.

(2) For this purpose the commencement of the arbitral proceedings has the same meaning as in Part I (see section 14).

(3) For the purposes of this section the question whether an arbitration agreement is a domestic arbitration agreement shall be determined by reference to the facts at the time the agreement is entered into...[Section 87]”.

“(1) The parties are free to agree when arbitral proceedings are to be regarded as commenced for the purposes of this Part and for the purposes of the Limitation Acts.

(2) If there is no such agreement the following provisions apply.

(3) Where the arbitrator is named or designated in the arbitration agreement, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties a notice in writing requiring him or them to submit that matter to the person so named or designated.

(4) Where the arbitrator or arbitrators are to be appointed by the parties, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties notice in writing requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator in respect of that matter.

(5) Where the arbitrator or arbitrators are to be appointed by a person other than a party to the proceedings, arbitral proceedings are commenced in respect of a matter when one party gives notice in writing to that person requesting him to make the appointment in respect of that matter... [Section14]”.

The Arbitrants may have chosen arbitration because of its finality. These sections taken together may preclude finality. Further these sections draw attention to the potential difficulty of appointing an expert arbitrator, who whilst may be expert in (say) accountancy is not expert in law and may well make an "obviously wrong" legally based decision. If the parties want finality they should agree to finality at the onset of the arbitral proceedings.

(O) “Loss of right to object”.

“(1) If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection -

(a) that the tribunal lacks substantive jurisdiction,

(b) that the proceedings have been improperly conducted,

(c) that there has been a failure to comply with the arbitration agreement or with any provision of this Part, or

(d) that there has been any other irregularity affecting the tribunal or the proceedings, he may not raise that objection later, before the tribunal or the court, unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not with reasonable diligence have discovered the grounds for the objection.

(2) Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling -

(a) by any available arbitral process of appeal or review, or

(b) by challenging the award, does not do so, or does not do so within the time allowed by the arbitration agreement or any provision of this Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling...[Section 73]”.

I am surprised at the number of Arbitrants who simply ignore the commencement of arbitral proceedings. If you think the arbitral proceedings are invalid, say so: do not just simply ignore the proceedings.

Conflicts.

One of the benefits of ADR, especially of arbitration, is that an expert can be chosen who is familiar with the commercial context to the dispute. That benefit however as been reduced as lawyers seek to question the impartiality of arbitrators so as to avoid the award and/or ‘play for time’. Inevitably experts maybe be known to the Arbitrants and/or their legal advisers because they may well operate in the same commercial arena; and this in my view is beneficial to the ADR process. Of course it is correct to say that an arbitrator cannot have a direct interest in the position of a particular Arbitrant. However the question is to what extent one can look at the indirect interests of the arbitrator viz any particular Arbitrant. As can be seen I have a number of employment and positions, and am no ‘spring chicken’. Over the years, as an accountant I may have instructed a particular set of lawyers or as a lawyer I may have been instructed by a particular set of accountants. I will do a normal conflict search prior to accepting any appointment and that conflict search will be performed at some, if not all of the employees and positions noted on this website. However, I cannot perform an indirect conflict search to ascertain whether one of my employees or positions has at some time in the past been instructed by, or has instructed any particular set of lawyers or accountants. I will however disclose any such relationship of which I am aware: whenever I disclosed such an indirect relationship the Arbitrants have always accepted that I continue in office.

The practice of law and accountancy within an ADR context.

I have been advised by various professional bodies that the practice of an arbitrator, conciliator and mediator is not the practice of law or of accountancy; this is notwithstanding my professional qualifications as a lawyer or as an accountant. Doubts remain as to whether the appointment of an expert determiner, given that I am both a lawyer and accountant, falls within the practice of law or accountancy, but for my view I take the view that it does fall within either one of those practices. If I am therefore appointed as an arbitrator, conciliator or mediator I am not governed, save in an indirect sense, by the relevant professional organisations.