Chapter 12: Procedure and evidence

12.8 The first limb of section 33 requires the tribunal to act fairly and impartially and to give each party a “reasonable” opportunity to put its case. This provision is based on Article 18 of the Model Law, and is broadly intended to preserve the principles of natural justice as they apply in arbitration proceedings. These principles are of particular practical importance where a party is aggrieved by the procedure which has been adopted in an arbitration. Most applications for remission of an award, removal of an arbitrator or setting aside of an award for serious irregularity are based on alleged unfairness in procedure, although it should be noted that most are unsuccessful. The DAC expressed the hope that “the courts [would] take a dim view of those who try to attack awards because of suggested breaches of this [section] which have no real substance”. 7 What justice and fairness require in any given case will vary enormously depending on the circumstances of the dispute and the particular procedure chosen by the parties. In a commercial arbitration it is generally assumed that the parties have agreed to a more informal procedure than would prevail in court. For instance, in a small arbitration on documents, formal disclosure of all documents relating to the dispute will rarely be required.

12.9 Section 33(a) places two essential requirements upon the tribunal, each of which must be balanced against the requirements of section 33(b):

• The arbitrator must act fairly and impartially. Bias and the judicial role of the arbitrator are considered in chapter 11.

• The arbitrator must give each party a reasonable 8 opportunity both to put its case and to reply to its opponent’s case.

12.10 The question of what constitutes a “reasonable” opportunity will depend on all the circumstances and the nature of the dispute. However, the following general comments may be stated.

12.11 There is no absolute right to, or presumption in favour of, an oral hearing in any arbitration. Reflecting section 34(2)(h), the LMAA Terms provide for the tribunal to decide whether there should be oral evidence or submissions. The tribunal will have regard to any agreement made by the parties, and the parties are encouraged to agree at an early stage whether there should be a hearing. 9 However, the tribunal will consider carefully whether an oral hearing is appropriate and would be empowered to order a hearing even if the parties have agreed to proceed on documents only. 10 Although there is no absolute right to an oral hearing, where such a hearing is ordered the tribunal must ensure that each party is given reasonable notice of it, including:

• notice of when and where the hearing is to take place. Notice should be given to a party even if all the circumstances suggest that it will not attend; 11

• a reasonable opportunity to attend the hearing with witnesses and (where appropriate) legal representatives. The question of what constitutes a reasonable opportunity depends on all the circumstances: the arbitrator must balance each party’s legitimate interests and if, for example, a party is being unreasonable in refusing to agree to a convenient hearing date then the arbitrator would be justified in fixing a date which is reasonable in all the circumstances.

12.12 The LMAA Terms reflect section 33 by expressly providing that the purpose of LMAA arbitration is to obtain “the fair resolution of maritime and other disputes by an impartial tribunal without unnecessary delay or expense. The arbitrators at all times are under a duty to act fairly and impartially…”. 12 Similarly, the LCIA Rules (2014) expressly replicate the terms of section 33. 13 However, since section 33 is a mandatory provision, it is doubtful whether such terms have any significant effect on the tribunal’s duties.

12.13 The tribunal must ensure that each party is given a reasonable opportunity to put forward evidence and argument. If an arbitrator excludes evidence without proper grounds for doing so, this may constitute a serious irregularity (although a mere error of law or fact in excluding evidence – for instance in deciding that documents...