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18 May 2017
In P v. Q & Others [2017] EWHC 148 (Comm), a party to an arbitration sought an order, in support of its application to remove two arbitrators, that the tribunal disclose material to it. The High Court dismissed this request; it recognised that arbitrators’ adjudicative materials are, like judges’, immune from disclosure. It also clarified the scope of that immunity.
The applicant was the defendant in a dispute arising out of a joint venture agreement and a shareholders’ agreement. A three-member tribunal was constituted by the LCIA and a Tribunal Secretary (the “Secretary”) was appointed by the Chairman (not referred to as a “presiding arbitrator” in this case as the arbitration took place under the 1998 LCIA Rules) with the agreement of the parties.
The applicant had filed a challenge with the LCIA to have the tribunal removed. Amongst other things the applicant alleged that the tribunal had “improperly delegated” its role to the Secretary. The applicant relied, among other things, on an email from the Chairman, which had been mistakenly sent to a paralegal on the applicant’s team, in which the Chairman had asked for the Secretary’s reaction to a previous communication from the claimant raising issues with the applicant’s disclosure. In substance, the applicant argued that the Secretary’s role should be limited to administrative tasks.
The LCIA dismissed these grounds on the basis that the Secretary had not been involved in the decision-making process without adequate supervision; although the Chairman was stood down on different, unrelated, grounds.
Following this decision, the applicant sought, from the High Court, the removal of the co-arbitrators on similar grounds as those which were rejected by the LCIA. The application was based on s.24(1)(d)(i) of the Arbitration Act 1996 (the “Act”), which empowers the courts to remove an arbitrator if he or she has “refused or failed properly to conduct the proceedings”.
In support of this, the applicant sought disclosure of certain documents, including the instructions sent from the co-arbitrators or the Chairman to the Secretary and any communications relating to the role of the Secretary.
The court dismissed the application for two reasons.
First it found that the documents requested were not strictly necessary for a determination of the application. The court applied the same test as that adopted in the context of requests for disclosure from non-parties, where applicants are required to show that disclosure is a “necessary and proportionate response in all the circumstances”. The court recognised that arbitrators are not in the normal position of parties to litigation when resisting challenges against them as they must defend themselves in a way that maintains the appearance of independence and impartiality.
Secondly, and more importantly, the court considered that the materials sought fell within the scope of Locabail immunity and were part of the tribunal’s “deliberations” which are, pursuant to the LCIA Rules, confidential.
In Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451, the Court of Appeal had decided that cross-examination or disclosure could not be sought from a judge in the context of a challenge to his or her impartiality. In P v. Q & Others the High Court extended that principle to “all professional and lay adjudicators”, including arbitrators. Relying on certain policy considerations (including the necessity to preserve the confidentiality of the adjudicating process), the court held that the immunity should extend not only to documents which might be categorised as “deliberations” but all materials brought into existence for the purposes of the adjudicatory function.
In that regard, the court rejected the distinction which the applicant sought to draw between the documents which revealed the process of the decision-making and those which went to the substance of it, stating that the way in which the adjudicating body goes about making its decision is “as much part of the decision-making function as the substance of the decision and the discussion of the outcome of any application concerned.”
Arbitrators already enjoy immunity for their acts and omissions under the Arbitration Act 1996. The High Court has now clarified that arbitrators’ adjudicative materials are also immune from disclosure.
Whilst the court adopted a particularly broad view of what falls within these, such a construction was necessary to avoid the courts being flooded with requests by parties to examine the way in which tribunals have performed their duties and preserve the stability and finality of the arbitration process.