ofroitzheim - 2011-10-07 20:37:06
The new Moot Problem poses the question whether or not an attorney can be challenged. What do you think?
Guest: dude - 2011-10-07 21:26:38
I am not sure about that. I think there can be an analogy to arbitrators. Arbitrators can be challenged. However, I have no precedent for that found yet. I will come back later when I found some reference for that.
Guest: kuti papa - 2011-11-03 11:56:15
i dont think so people. i think there is something in braazilian jurisprudence on this. arbitrator neha _ madras //9/yindia///
ofroitzheim - 2011-11-03 12:44:56
That would be very interesting. Do you have the citation of this case or the docket number?
Geoffrey - 2011-11-05 21:50:21
Sometmes, I suggest, it may be useful to forget local rules of Law and local codes of ethics and to consider the simple logic! (Engineers are simple-minded).
The parties may challenge an arbitrator because they are jointly and severally in a form of contract with the members of the tribunal whoever apointed them. the arbitrators have to hear the issues and decide without bias (there is a special class of exception, the arbitrator-advocate but we need not consider that in an international context). If there is reason to doubt his/her independence and a Party has not waived their right to chalenge an arbitrator, that Party may take steps.
A Party has the right to be represented by a person of his choice (according to some National Statutes, and sometimes Bar monopoly provisions adopted as Law, that person must be a lawyer - quaere what Law applies to a particular instance?). Clearly, I suggest, arbitrators can only refuse to hear a putative representative for cause and bias on the part of Counsel is to be expected (perhaps desired!). In any event the tribunal cannot control whom a Party consults outwith the room.
If possible bias is suspected, I submit, it is only the arbitrator who should be challenged for the logical reason that removing anyone else does not affect the fact, if it is a fact, of the seed of bias in the collective mind of the tribunal.
I say nothing of the instant case. The jolly Engish Supreme Court matter of Jivraj v Hishwani shows how a lawyer may undermine a tribunal, but that is by choosing an arbitrator.
The English tradition quite likes Counsel to be cosily in the same Chambers as Counsel but the justification of that relatonship is, in this Contributor's opinion, dubious at best, but what do Engineers know?
At times like these, I'm glad the moot tribunals don't have to decide the case!
ofroitzheim - 2011-11-06 11:48:21
You pointed out correcty that a Party has the right to choose its representative. However, I think that this cannot be an absolute rule. A party would have the possibility to challenge any inconvenient arbitrator during the proceedings. The only task for that party is to change its counsel with a new counsel constituting a conflict of interest with the said arbitrator. This should be borne in mind.
The Case you cited ( http://www.bailii.org/ew/cases/EWCA/Civ/2010/712.html ) really shows how the appointment of arbitrators by one party can disrupt the arbitration. Though, the question of challeging a counsel is quite different. The question here is whether or not a counsel can be challenged because of constituting a conflict of interest with an arbitrator despite the fact that (as far as I know) there is no provision dealing with this.
Your last point seems to be focused on the issue of Barristers from the same Set of Chambers which is a seperate issue of arbitration law and, as far as I can see, not directly connected to the issue discussed here.