Mistake As To Legal Qualification Of Experienced Arbitrator Does Not Constitute Ground For Removal

Continental Grain Co v China Petroleum Technology and Development Corp (QBD), NLD December 10 1998

Commentary

The removal of an arbitrator can only be sought on the limited grounds listed in section 24(1) of the Arbitration Act 1996. The applicant was not able to bring the application within any of those grounds and the conditions for relief based on unilateral mistake were not satisfied. The application was therefore bound to fail. Parties should accordingly ensure

(i) that a proposed arbitrator meets the parties' particular requirements before they agree to his appointment; and

(ii) that any such requirements as to qualification are expressly spelled out in the arbitration agreement if they are of particular importance.

The arbitrator can then be successfully removed pursuant to section 24 if he does not possess the required qualifications.

Decision

The parties did not consider the question whether the arbitrator had a legal qualification when they agreed on his appointment; neither was the appointment of the arbitrator on terms that he had a legal qualification. The applicant could accordingly not rely on the provisions of the Arbitration Act 1996 for the removal of the arbitrator. The court further found that the conditions for relief based on unilateral mistake were not satisfied and that the mistake was not so fundamental that it called for equitable relief.

Background

The applicants (respondents in two related arbitrations) sought declarations that the arbitrator’s appointment in both arbitrations was void because their consent to his appointment was vitiated by their (unilateral) mistake as to his qualifications in that although he was an experienced arbitrator he was not legally qualified.

For further information on this topic please contact Neil Aitken,
Charles Spragge or Gregor Kleinknecht at CMS Cameron McKenna
by telephone (+44 171 367 3000) or by fax (+44 171 367 2000) or
by e-mail ([email protected] or [email protected] or [email protected]).