The Regulation of Misconduct in Adjudication and Arbitration

James Pickavance

April 2016

A paper presented to the Society of Construction Law at a meeting in Cardiff on 25th November 2015

This paper focuses on two aspects of misconduct on the part of lawyers and experts in adjudication and arbitration. In particular: first, intimidation by lawyers of arbiters (adjudicators or arbitrators); and second, an improper approach to evidence by an expert, either self-directed or influenced by the instructing lawyer. The first part of the paper explores the rules in place to control the conduct of lawyers admitted in England & Wales in domestic and international arbitration and statutory adjudication. It outlines some of the tactics commonly used to intimidate arbiters, considers what sanctions or measures are available to an arbiter, and lastly highlights some case law on point. The second part follows the same structure, as applied to experts. The final part of the paper offers some suggestions for the ways in which the shortcomings of the existing rules might be addressed.

A. Introduction - B. The opportunity for misconduct - Private proceedings - Relatively unregulated procedure - Greater risk of improper influence - C. Lawyers - National Standards - Transnational standards - D. Intimidation - E. Sanction for misconduct: adjudication - F. Sanctions for misconduct: arbitration - Case law - G. Experts - Standards - Codes of practice for experts - Institutional rules - H. Misconduct by experts - Sanctions against experts - I. Conclusions and possible ways forward.

The author: James Pickavance is a partner in the litigation division at Eversheds LLP, solicitors, in London; he is also author of A Practical Guide to Construction Adjudication.

Text: 31 pages