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“Nomination – a dark art?” – Report from the London and South East Region Event on 2nd December 2009
One of the common moans I hear from party representatives is on the subject of nominating bodies. These gripes include “we don’t know who is on their panel”, “we don’t know how they select adjudicators”, “we never get the adjudicator we ask for”, and so on. The committee of the London and South East Region therefore decided to assemble a panel of speakers from some of the most commonly used nominating bodies to explore whether there was any merit in these gripes, or whether they are just “sour grapes” by losing parties. Our esteemed panel consisted of Simon Baylis (Partner, Wragge & Co) from TeCSA, Martin Burns from the RICS Dispute Resolution Services, Allan Connarty from IDRS Limited and Brendan van Rooyen from the ICE. The panel was chaired by Emerson Holmes, a partner with our hosts, Nabarro.
Those attending the event had suggested their questions for the panel, and the committee whittled these down to 16. Emerson did a sterling job bowling them at the panel, and then prodded and probed in true David Dimbleby style. We only managed to get through seven of the 16 questions, but the answers given by the panel were quite revealing. In answer to the question “Should nominating bodies publish lists of the practitioners on their panels?”, it was clear that the two nominating bodies who do not currently publish their list will be doing so later in 2010. This will allow parties greater freedom to suggest the names of adjudicators they would like to be appointed. It was also interesting to learn how the nominating bodies appoint adjudicators, whether by qualifications, experience, location, “cab-rank”, etc. All four panellists said that factors such as qualifications and experience are taken into account, but one of the panellists confirmed that once all of the available adjudicators with the relevant qualifications and experience have been identified, the adjudicator will then be appointed on a “cab-rank” basis.
There was lively debate on the question of whether feedback on adjudicators should be published. Whilst there were many vocal objections to any such proposals, Emerson explained that some American arbitration organisations now publish feedback which is limited to answers to closed questions on procedural matters, for example “Were you satisfied with the time that the arbitrator took to acknowledge submissions”. No consensus was reached but it was certainly an interesting idea to consider.
When asked whether nominating bodies feel obliged to re-appoint an adjudicator who has already adjudicated on a previous dispute between the same parties, three of the panellists responded that, unless there was a good reason not to, they would appoint the same adjudicator. However, one panellist said that his nominating body took the opposite approach and would not appoint the same adjudicator unless there is a good reason.
The feedback after the event was excellent and it was clear that those attending found it very helpful to understand how nominating bodies appoint adjudicators. Whilst it was not possible to cover all of the questions, my overall impression was that many of the gripes about nominating bodies are unfounded. Can we therefore conclude that the gripes are “sour grapes” of losing parties? Perhaps, but as always it will depend on the facts.
The committee is very grateful to all of the panellists for putting themselves forward for what could have been the equivalent to an evening in the stocks, and for all their insightful contributions. The committee also wants to thank Emerson Holmes for doing such an excellent job in the chair and Nabarro for providing such excellent hospitality.
Item date:6 January, 2010