Eckhart v A.G.
| Jurisdiction | Dominica |
| Judge | Adams J. |
| Judgment Date | 06 April 1993 |
| Neutral Citation | DM 1993 HC 3 |
| Court | High Court (Dominica) |
| Docket Number | 570/92 |
| Date | 06 April 1993 |
High Court
Adams, J.
570/92
Mr. Rex H. Mc Kay, S.C. and Mr. Ronan David for the applicant
Mr. Anthony Astaphan and Mr. A. Laronde for the respondent
Arbitration - Bias — Differences in connection with an agreement referred to arbitration greement between applicant and Commonwealth of Dominica — Arbitration appointed — Allegation that arbitration had close relationship with Government of Commonwealth of Dominica — Whether arbitration capable of impartiality — Whether arbitration would be tainted by bias.
The applicant approaches this court by way of an originating summons dated 7th December, 1992 seeking an order that the appointment of the person named as arbitrator in the reference to arbitration between Alfred Eckart and the Commonwealth of Dominica be revoked on the ground “that by reason of his business and professional relation with and the employment by the Commonwealth of Dominica he might not be capable of impartiality. “
In addition the applicant seeks an order that
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(a) The said arbitration agreement shall cease to have effect with respect to the dispute referred or alternatively for an Order that some other person be named arbitrator;
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(b) An order that the said Arbitration be stayed until the hearing and determination of this motion;
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(c) For such further or other order including costs as shall be just.
The facts, which provide a background to the application, are as follows: –
An agreement was executed between Alfred Eckart and the Commonwealth of Dominica (hereinafter referred to as Government) on 17th December 1982; it was agreed that all differences that might arise in connection with the said agreement would be referred to arbitration. Differences having in fact arisen between the parties' two arbitrators and an umpire were in accordance with the agreement appointed. The arbitration commenced “on or about September 1991” and when it had been reaching its end counsel for the applicant alleged he was then made aware for the first time that the arbitrator did have “a close business and professional relationship with the Attorney General and the Government of the Commonwealth of Dominica” citing as an example the undisputed fact that the arbitrator had “appeared as counsel for the Government of Dominica in the case of Emanuel v Attorney General of Dominica.” These words in inverted commas have been lifted out of the affidavit of the applicant who went on to swear that his concern as to the impartiality of the arbitrator was communicated to the umpire and the two arbitrators by letter dated 8th July, 1992. The applicant's affidavit went on to state that the relationship between the arbitrator and the Government had never been disclosed and expressed fear that because of the arbitrator's continuing business relationship with and employment by the Commonwealth of Dominica and the Attorney General” the arbitrator “might not be capable of impartiality as an arbitrator in the arbitral proceedings between Alfred Eckart and the Government of the Commonwealth.” in view of all this the applicant seeks the orders referred to at the beginning of this judgement.
At page 250 of the second edition of “The Law and Practice of Commercial Arbitration in England” the learned authors suggest that “Bias may arise from a relationship between the arbitrator and one of the parties, or from a relationship between the arbitrator and the subject matter of the dispute.” It is clear that in the matter before me it is an allegation of the former kind that is being urged as the ground for the removal of the arbitrator and I hasten to make the point referred to in the applicant's affidavit of reply that the close relationship which is being alleged in the case is not one between the Attorney General in his personal capacity and the arbitrator but rather one which exists between the arbitrator and the office of Attorney General and the Government of Dominica. Indeed different persons have held that office over the period of time with which this case is concerned.
Now what does the evidence disclose as to this impugned relationship. Having read the affidavits of the Honourable Attorney General, State counsel from the Chambers of the Attorney General and the Manager of Dominica Electricity Services the following elicited from the affidavits and emerging during the oral testimony and accepted by me provide, in broad terms only, the factual background:
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(1) Arbitration proceedings (two of them) between a company known as Dominica Electricity Services Ltd and a company called Nord-France Enterprises International are pending.
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(2) The Government of Dominica possesses 53% of the shares in Dominica Electricity Services.
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(3) The arbitrator whose removal is being sought in this matter before me has in fact been retained as counsel to Dominica Electricity Services Ltd in both of the arbitral proceedings.
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(4) The fees of the arbitrator are being paid by the Dominica Electricity Services Ltd (referred to hereinafter as Domlec).
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(5) Prior to the arbitrator having been retained, documents relating to the DOMLEC/Nord-France arbitration were sent to the office of the Attorney General.
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(6) Counsel from the Chambers of the Attorney General did sign pleadings on behalf of DOMLEC and did so on the instructions of the Attorney General.
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(7) While serving tile arbitration proceedings the arbitrator was still being paid in relation to matters concluded in November of 1990 and April of 1991 respectively.
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(8) Having served as counsel for the Government of Dominica in the case of Emanuel v The Attorney General of Dominica hearing of which ended on 24th April, 1991 the name of the arbitrator is to be found in the submission to arbitration dated 25th April, 1991.
The question I am left to resolve is whether the relationship between the impugned arbitrator and the Government of the Commonwealth of Dominica was of such that he ought to be removed as arbitrator on the ground of what is sometimes called the probability of bias described by the authors “Mustill and Boyd” in their book “Commercial Arbitration” a predisposition to decide the dispute in a particular way. That predisposition we are informed may take the form of favoritism or antipathy towards one of the parties but it is hardly ever the case that actual bias is disclosed though in the case of Parker v Burroughs 1702 Colles p 257 that is what did happen. In that case the infamous Dr Titus Oates in order to take revenge upon a particular family for having failed to invite him to preach at a funeral procured his appointment as arbitrator in a dispute about the Will of the deceased and proceeded to declare that will invalid. Mercifully that twist of mind by the goodly Dr Oates is one not expected to be displayed nowadays except, perhaps rarely and indeed actual bias is hardly ever proven.
An important milestone in the historical development of the law relating to bias is the case of R v Sussex Justice exparte McCarthy 1942 1 KB page 256 which left us the enduring legacy of tile comment that it “is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.” In that case the applicant was convicted for the offence of dangerous driving. The acting clerk to the justices was a member of a firm of solicitors who had acted for the other party involved in the accident in civil proceedings arising therefrom. The clerk had not in any way discussed the case having retired with the justices. The conviction was quashed since it was felt that the presence of the clerk had created a suspicion that there had been an improper interference with the course of justice.
In the case of The King v Essex Justices exparte Perkins 1927 2 KB p 475 the clerk to the justices was a solicitor. That solicitor had left his own professional business to be handled by his clerk. The solicitors' clerk had handled the preparation of a separation deed between the applicant and his wife. When the applicant's wife summoned him for maintenance her husband discovered that the solicitor was sitting as clerk to the justices; unaware at first that he had a right to challenge the presence of the solicitor, he eventually did so.
In the proceedings, which followed the applicant, husband sought a rule risi for certiorari; the solicitor stated in his affidavit that when acting as clerk to the justices on the occasion in question he had no knowledge that his firm had acted for the wife. It was held firstly that the rule should be made absolute as the applicant had a right to take objection to the presence of the solicitor as clerk to the justices, since such presence would create in his mind a reasonable impression that the justice was not being done. It was also held that the applicant had not waived his right to take the objection by not having exercised it earlier since he did not know that he was entitled to it.
In the 1937 case of R v Salford Assessment Committee [1937] 2 All E.R. p 98 the respondent committee appointed one B as its clerk. That committee had the duty of scrutinizing valuation lists and appeals in relation to such lists were heard by that committee. The applicant's objection on the ground of bias sought to have B removed from the committee for the reason that he was also clerk to the committee dealing with the valuation lists. Slessen LJ, in upholding the ground of bias had this to say — “It follows therefore that the general principles affecting the possibility of bias as exemplified in the case of justices of the peace should be applied to an assessment committee and this I think irrespective of their particular constitution. As has so often been stated it is not only necessary that justice be done, but that it should manifestly appear that justice is done, and the complaint here made is in essence that Mr. Brown is...
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