Making appointments
Making appointments
THERE can be few better descriptions of maritime arbitration than that provided to ‘Bernstein’s Handbook of Arbitration and Dispute Resolution Practice’ by QCs John Tackaberry and Arthur Marriott.
“In the world of maritime arbitration there is a constant apparent shortage of arbitrators whom parties and their advisers are prepared to use. The obvious answer is that more competent arbitrators need to be identified and appointed, but in the long run this is something that can only effectively be done by the market, i.e., those who are making the appointments.
“There is very little that the LMAA can do. Experience has shown that membership of the LMAA does not help to advance the cause of an individual whose reputation has not otherwise attracted many appointments to him. Equally, a substantial number of individuals have become quite successful as maritime arbitrators before joining the LMAA.
“Various attempts have been made over the years to spread the load. Despite all efforts, those who have the gift of appointment continue to favour a limited number of arbitrators who, consequently, are always somewhat overworked.”
It is better that those with the gift of appointment favour a limited number of arbitrators than a number of limited arbitrators. But some new blood would be nice – and not just in London.
LMAA changes
THE London Maritime Arbitrators Association is undertaking a review of its standard terms and those relating to the Small Claims Procedure. It says it would welcome constructive suggestions as to possible improvements to either set of terms.
With the tenth anniversary of the Arbitration Act 1996 coming up, thought is also being given to possible changes that might improve its working. The LMAA will certainly be involved in this process, so again constructive suggestions are welcomed.
Our constructive suggestion is that the LMAA stops spoiling all the good work it does in other areas by hiding behind a law that doesn’t exist and refusing to tell its constituency that it will henceforward publish all its awards on a proper, open and commercial basis, this rather than continuing its exclusive (in every way) publishing arrangement with one journal.
As Lord Justice Mance said in the English Court of Appeal decision in ‘Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co et al’, “Arbitration is an important feature of international, commercial and financial life, and there is legitimate interest in its operation and practice.”
New China arbitration rules
AND finally, to China, which, in shipping these days, is the new China. The China International Economic and Trade Arbitration Commission (CIETAC), China's main international arbitration body, has amended its arbitration rules. The new rules introduce key changes to earlier versions.
One unusual feature of CIETAC arbitrations was the requirement that arbitrators be chosen exclusively from the CIETAC panel of arbitrators. But the new rules allow the parties to appoint arbitrators from outside the panel, provided the parties agree to do so and that the appointment is confirmed by the chairman of CIETAC.
Under the previous rules, China was the seat of all arbitrations conducted by CIETAC. Therefore, Chinese procedural law applied to all arbitration proceedings. But, under the new rules, parties are now free to select the seat of arbitration.
Also, under the old rules, the parties to an arbitration administered by CIETAC were permitted to conduct proceedings under arbitration rules other than those of CIETAC. But this discretionary power has been removed under the new rules.
The rules appear to address concerns outside China about the independence and impartiality of CIETAC arbitrators by imposing a positive obligation on all arbitrators to treat the parties equally, fairly and independently. Sounds very much like what arbitration is supposed to be about.