We should not challenge the chairman because a challenge now effectively constitutes a waiver of annulment and refusal of recognition and enforcement on the grounds of lack of independence of the chairman later on, should we lose the case. However, this is only to the extent that the e-mail from Shunxi's outside counsel does not count as a disclosure on the part of the chairmanor, even if it does, that it does not amount to a complete disclosure.
My conclusion is based on two fundamental premises: firstly, that we should not assume that the tribunal will rule in our favour, no matter how strong we might believe our case to be; secondly, that pre-arbitration disclosure and challenge effectively constitutes a waiver of challenge post-arbitration.Needless to say, there are two possible outcomes for the present case (indeed, for every case). In the situation where we win it, then all is well. However, in the alternative, if we lose, we will want to have a back-up plan, whether to delay proceedings, or to annul the award or deny it recognition and enforcement altogether. It is this back-up plan that we will forego if we challenge the chairman at this stage of the proceedings, because, to my knowledge, there has never been a single instance where a lack of the arbitrator's independence, which has already been the subject of pre-arbitration disclosure or challenge, has succeeded as the basis of post-arbitration challenge, whether at the annulment stage, or during recognition and enforcement. This is due to the idea that pre-arbitration disclosure and challenge amounts to a waiver of challenge after the proceedings based on the same grounds.
[...] strict principle, barristers are legally independent from one another. In practice, they may well enjoy a functional relationship, including consulting one another on difficult case files.”4 Thus, the occasion may arise where coming from the same chambers as one of the party's advocate affects the impartiality and independence of the arbitrator, and whether this is so is a question of fact that depends on each particular case. Unfortunately, I have not been given sufficient material or information for me to assess in detail how the particular chambers in question works. [...]
[...] “Barristers from the Same Chambers Appearing as Counsel and Arbitrator: Independence Revisited?” Published in a slightly different form in the November 2011 issue of Dispute Resolution International. http://www.whitecase.com/files/Publication/861cf65d-b599-4924-b50bb4f8a4d71576/Presentation/PublicationAttachment/13046ff9-10bd-4509-88bfb72fc2692bd9/article_International_Barristers_Chambers_Nov2011.pdf 11 Ibid. BIBLIOGRAPHY 1998 LCIA Arbitration Rules Bishop, Doak, and Lucy Reed. “Practical Guidelines for Interviewing, Selecting and Challenging Party-Appointed Arbitrators in International Commercial Arbitration.” Arbitration International (1998). http://ksintranet.kslaw.com/library/pdf/bishop4.pdf. Nathan, KVSK. “Barristers in Chambers in England—Paragons of Virtue or Just Being Mealey's International Arbitration Report (1999). [...]
[...] http://law.bepress.com/unswwpsflrps/art25. Turner, Peter, and Reza Mohtashami. A Guide to the LCIA Arbitration Rules. USA: Oxford University Press Yu, Hong-Lin, and Laurence Shore. “Independence, Impartiality, and Immunity of Arbitrators: US and English Perspectives.” The International and Comparative Law Quarterly, Vol No (2003): 935-967. http://www.jstor.org/stable/3663379. [...]
[...] On top of this, ‘[s]enior barristers often have significant influence on the progress of junior colleagues' careers. Moreover, London chambers increasingly brand themselves as specialists in particular fields, with senior taking on marketing roles for the chambers, sometimes travelling to stimulate collective business. Moreover, a barrister's success means an enhanced reputation, which in turn reflects on the chambers as a whole.'9 Therefore, it would not be unreasonable to expect some degree of partiality in the arbitrator who is of the same chambers as an advocate of one of the disputing parties. [...]
[...] “Independence, Impartiality, and Immunity of Arbitrators: US and English Perspectives.” The International and Comparative Law Quarterly, Vol No (2003), p 943. http://www.jstor.org/stable/ of each other is far from the truth.”6 This situation is made all the more pronounced in international commercial arbitration circles, where small number of barristers in a very small number of sets of chambers specialize in the field as advocates and arbitrators”7. An author even describes how he “recently participated in an ICC arbitration in which five barristers from the same London chambers served as counsel and expert witnesses for both parties and as presiding arbitrator”8. [...]
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