However, the claimant raised an objection citing a possible issue over the impartiality of the tribunal, and asked for clarification of the relationship, from the defendant, along with further details. Before the claimant had a chance to do so, the president himself responded, stating that he had no association with the QC other than that they were members of the same chambers.
The defendant responded, also asserting that there was no personal relationship, but refusing to disclose when the QC had been retained, or the role he would have in the hearing, arguing that they had no obligation to do so (although they did disclose these facts once the hearing commenced). The defendant maintained its objection.
Ruling on this issue, the tribunal found that it had the power to exclude the QC from the hearing and did so. It gave four reasons, first, “the London chambers system was wholly foreign to the [overseas] claimant”; secondly, the defendant had made a “conscious decision” not to disclose the QC’s involvement at the outset (months earlier); thirdly, “the tardiness” of the defendant’s announcement of the QC’s involvement; and finally, the defendant had refused to provide the further information requested.
This could be an important decision (at the very least for ICSID arbitrations) as it raises doubt over the practice, common place in England, of using arbitrators and advocates from the same barristers chambers. In the (re)insurance market, many policies provide for an arbitration before a panel including a QC and before a single QC as arbitrator. In this case there were a number of distinguishing circumstances, but it is still significant given that one of the reasons the tribunal cited was that an overseas party was unfamiliar with this practice; an important point given the often international nature of English arbitrations.