Originally from Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42

PHILLIP CAPPER:

Thank you very much indeed. It is a great privilege to be invited to be here. It is a particular responsibility to be tarred with the brush of the common law but I will see what I can do with that. It is a real pleasure nevertheless to be here and I am very grateful for this opportunity.

Bias, misconduct and obstruction: what our chairman has not told you but he has told us is that we are to speak about practical experiences, of situations likely to arise in typical arbitration. We have been told not to give you an abstract legal discourse so we will not. These are my experiences and they come from commercial arbitrations rather than from investor protection cases.

I have had some bad experiences. My bad experiences have more commonly been when counsel looking at the tribunal—I mean bad experiences with bad arbitrators when looking as counsel—but nevertheless I want to broaden the idea of bias. Much of what I say has come from my experience as arbitrator. I speak this morning more from my experience as arbitrator than as counsel.

We will have to think about this question of reporting misconduct but that assumes we agree on what is misconduct and I am not sure there are very good channels for the reporting of misconduct in any event.