Suing a barrister for misconduct when he is acting as an arbitrator

mountainyman

Can you sue a barrister for malpractise if he acts not 'on his feet' but rather as an arbitrator.

Further who would have locus standi to sue for malpractise (rather than simply appeal) a barrister acting as head of a tribunal?

MM

Gobán Saor

If the tribunal in question has a statutory basis or is publicly funded then it is judicially reviewable.

You will probably find that a barrister acting as an arbitrator has insisted on an indemnity clause before taking on the arbitrators mantle.

dermot_sheehan

Section 12 Arbitration (International Commercial) Act 1998
http://www.irishstatutebook.ie/1998/en/act/pub/0014/sec0012.html#zza14y1998s12

12.—(1) An arbitrator shall not be liable for anything done or omitted in the discharge or purported discharge of his or her functions as arbitrator unless the act or omission is shown to have been in bad faith.

(2) Subsection (1) shall apply to an employee, agent or advisor of an arbitrator and to an expert appointed under Article 26, as it applies to the arbitrator:

(3) An arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator shall not be liable for anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith.

(4) An arbitral or other institution or person by whom an arbitrator is appointed or nominated shall not be liable for anything done or omitted by the arbitrator (or his or her employees or agents) in the discharge or purported discharge of his or her functions as arbitrator.

(5) Subsections (3) and (4)) shall apply to an employee or agent of an arbitral or other institution or person as they apply to the institution or person himself or herself.

(6) A witness who gives evidence in proceedings before an arbitral tribunal shall have the same privileges and immunities as witnesses have in proceedings before the High Court.

(7) A person who—

(a) is a barrister or solicitor or holds qualifications that have been obtained in another jurisdiction and are equivalent to those of a barrister or solicitor, and

(b) appears in proceedings before an arbitral tribunal,

shall have the same privileges and immunities as barristers and solicitors have in proceedings before the High Court.

(8) A person who is a patent agent as defined in section 94 (3) of the Patents Act, 1992 , or a registered agent as defined in section 91 (3) of the Trade Marks Act, 1996 , shall have the same privileges and immunities referred to in subsection (7) when appearing in proceedings before an arbitral tribunal on—

(a) in the case of a patent agent, any matter concerning the protection of an invention, patent, design or technical information or any matter involving passing off, and

(b) in the case of a registered agent, any matter relating to the protection of a trade mark or any matter involving passing off.

johnnyskeleton

It is not malpractice merely if an arbitrator finds against you or gives you an award which you don't think is adequate.

Locus standi is a term usually associated with judicial review and constitutional challenge. When you speak about malpractice, I assume you mean of a professional negligence nature. If so it is more about whether they owe you a duty of care or other duty than about locus.

Victor

So what happens if the arbitrator is a closet alcoholic who mishandles the proceedings?

NB With an arbitrator always seek a reasoned judgement.

johnnyskeleton

Victor wrote:

So what happens if the arbitrator is a closet alcoholic who mishandles the proceedings?

NB With an arbitrator always seek a reasoned judgement.

Being an alcoholic doesn't make you incompetent, if it is asserted that the proceedings are mishandled that would be a matter for evidence, but professional negligence has a higher standard than some other kinds of negligence/statutory liability.

Victor

johnnyskeleton wrote:

Being an alcoholic doesn't make you incompetent,

I am merely suggesting it as an example, in contrast toa roaring drunk that both parties would walk away from.

[/QUOTE] if it is asserted that the proceedings are mishandled that would be a matter for evidence, [/QUOTE]AFAIK, one can only appeal an arbitration on matters of law.

but professional negligence has a higher standard than some other kinds of negligence/statutory liability.

I was thinking about trying to appeal a decision in the courts, not a professional conduct complaint.

johnnyskeleton

Victor wrote:

I was thinking about trying to appeal a decision in the courts, not a professional conduct complaint.

You would be saying that the arbitration was wrong, not that there was malpractice or mishandling on the part of the arbitrator.

mountainyman

What if the arbitrator accepted an under the counter payment from one of the parties?

MM

templetonpeck

mountainyman wrote:

What if the arbitrator accepted an under the counter payment from one of the parties?

MM

Then thats a criminal offence and you need to take your evidence to the gardai. Also it would presumably fall under the 'bad faith' umbrella referred to in the Arbitration Act. You'd have to go down further and read the act to establish what the remedies are, within the remit of the Arbitration procedure.

mountainyman

What if the arbitration required specialist knowledge which the arbitrator lacked?

Say if it was to do with Carbon Trading for example and the arbitrator did not understand the area?

MM