Where the same or a substantially similar issue arises in a ‘hierarchical’ situation (e.g. between landlord and tenant and between tenant and sub-tenant), or in a ‘parallel’ situation (e.g. between a landlord and his or her tenants of a row of identical shops), and the applications for the appointment of an arbitrator are made to the Chairman at or about the same time, the Chairman may decide to appoint the same person as arbitrator in both or all cases (here referred to for convenience as ‘overlapping arbitrations’), both in order to save costs, and to achieve consistency of result.
This section considers the problems that may arise with such appointments, and suggests the procedures the arbitrator should adopt to deal with them.
19.2 The problems
There are four main problems that may confront an arbitrator appointed in overlapping arbitrations:
a) the arbitrator has no power to consolidate the proceedings or arrange concurrent hearings unless the parties so agree (see Rule 40). It may be found that no
procedure for a combined hearing or combined representations can be devised which would be acceptable to all the parties
b) each set of parties is entitled to insist on confidentiality being observed in relation to their arbitration, with the result that the arbitrator will not be able to divulge any of the detail of arbitration A to the parties in arbitration B
c) the parties to each arbitration are entitled to insist that the arbitration proceeds at a speed and cost which suits their own particular circumstances. The result may well be that the arbitrations will become out of step with each other, and that evidence or legal submissions in arbitration B that could have had a bearing upon the conduct or outcome of the delayed arbitration A will have to be left out of account
d) if the parties insist on their arbitrations being dealt with separately and privately, the arbitrator will have to consider whether they will be able to maintain impartiality.
However, if they feel that the circumstances are such that they may not be able to proceed in accordance with the statutory duty to act fairly, the arbitrator may decide to resign one or more of the appointments, but whether there are any circumstances which might make them liable for the abortive costs incurred should be taken into consideration (Rules 15 and 16). Section 19.3 below suggests some possible solutions to these problems.
19.3 The solutions
To an extent, if the parties to each arbitration are not prepared to cooperate with each other, then there will be very little that the arbitrator will be able to do about it, beyond warning the parties of the unfortunate consequences of different decisions based upon different evidence. The best policy for the arbitrator will be to adopt a proactive
approach right from the beginning, by warning the parties of the perils of independent behaviour, including the increased cost and delay and the potential for inconsistent decisions.
Accordingly, if the arbitrator has been appointed by the Chairman in two or more such arbitrations, the arbitrator should consider in consultation with all the parties, whether a procedure for a combined hearing or combined representations could be devised which is acceptable to all of them. A suggested procedure is set out in section 19.5 below.
19.4 Action on appointment
The following are the points to be noted whenever the arbitrator is appointed in two or more related cases:
a) the arbitrator must follow any procedural requirements laid down in any of the leases, even if these vary from lease to lease
b) as already noted, the arbitrator has no power to order combined hearings or submissions unless the parties consent
c) the arbitrator must respect the parties’ rights to have their arbitrations dealt with separately and privately
d) the arbitrator should strive to obtain the parties’ agreement to a procedure that will enable both arbitrations to run concurrently, even if they are not to be consolidated (see section 19.5).
19.5 Cooperative procedure
Where the arbitrator has obtained the parties’ agreement to a procedure that will enable both arbitrations to run concurrently, then:
a) the arbitrator should ensure that the parties’ agreement is recorded in writing b) the arbitrator should invite all the parties to a preliminary meeting, mindful however
of the parties’ right to require their own arbitration to be conducted privately, and without reference to any other at that meeting
c) the arbitrator should explain the nature of a consolidated hearing with particular reference to the matters set out in sections 19.1 and 19.2
d) the arbitrator should seek to give directions for the conduct of the references bearing in mind the matters set out in sections 19.1 and 19.2
e) despite the fact that the arbitrations may have been agreed to be dealt with
concurrently or even consolidated, each must be given individual consideration, and separate awards must be issued in respect of each, ideally simultaneously.
19.6 Uncooperative procedure
If the parties do not agree to consolidation or to hold concurrent hearings, then the arbitrations must be held separately, whether they are following the procedure for hearings or written representations.
In these circumstances, the arbitrator will have no alternative but to deal with each arbitration as an entirely separate undertaking. It is inevitable, however, that the approach taken in relation to one arbitration will be influenced by the evidence and submissions that may have been heard in the other. The arbitrator may raise matters that have arisen in a previous arbitration, or probe the evidence in the light of such knowledge. However, the award should not be based on a point not argued (or presented in representations) in the arbitration to which the award relates, without observing the rules of natural justice and giving the parties an opportunity of presenting written representations, or of being heard on those additional matters which the
arbitrator believes are material.
Further, the fact that the arbitrations must be dealt with separately does not mean that the arbitrator can reopen an award already given and change the conclusion as further evidence becomes available. Each reference is dealt with individually and when the arbitrator has made an award his or her authority as an arbitrator has come to an end in that particular reference.