There may arise a situation that you ought to rely on the wealth of legal-dicta to guide your decision but yet the party as portray in the examination may not have a chance to deliberate such. What would you do?
 
1.    An arbitrator's task is to decide what he has been asked to decide. In real life, arbitrator is cautioned NOT to suggest any legislation that has not proposed as being applicable to a certain issue; reason being the 'loser' might use this to set aside award; citing ‘self-evidence’.
 
2.    In examination, reference to quotation of laws may not be available and it is expected that the examiner will be looking for the candidate to refer to well-known [trite] legal authorities, so as to enable the examiner to know that the candidate could fairly apply the law to arrive to its impartial decision. Otherwise there is nothing for the candidate to write.[1]
 
3.    Therefore, it is important for candidate to make a declaration in its award by quoting [1] and [2] above, as an ‘end-note’ to guide the examiner but not constitute part of the award, so that the examiner will not fail the candidate by declaring that the award is unenforceable.
 
4.    Otherwise, the examiner will claim, “a huge level of dicta rely upon which has not been provided by the party and that has guided all the decision in this award make the award unenforceable”.[2]

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[1] BSS 153-Arbitration Award Writing, Topic 4:Detailed Requirements, (Robert Gordon University, 2017)
[2] CIArb International Arbitration Award Writing, Module 3

Party autonomy is the pillar of arbitration. However, the party fails to choose the choice of law apply to the substantive law of the arbitration, this may open up challenge to the substantive law:
 
Substantive Law
 

1. In the Hearing dated [DATE], the Claimant, stated that the law governing the contract should be […], based on the reason that the law governing the contract is the place where the product is made.
2. The Respondent alleged that the substantive law should be […] instead as this is the location of the dispute.
3. As both parties having disagreed, both said it would be up to the arbitrator to decide and I advised the parties that I would do so and include it as part of my final award in which case, I now do so as the followings:
   1. The arbitration agreement did not provide for the substantive law governing the contract;
   2. Traditionally, the test[i] for determining the ‘governing law’ is where the court must consider, is there an express ‘choice of law’ COL; an implied COL; which law does the arbitration agreement have its closest and most real connection with?
   3. In recent case[ii], court held, a COL govern the substantive obligations will apply to arbitration agreement, even if the COL chosen to govern the contract differs from that of the seat;
   4. Under the first caveat, the arbitration agreement must be valid under its applicable law[iii];
   5. Second caveat, if party argues that an arbitration clause is void under the substantive governing law, the inference is that ‘such a meaning could not rationally have been intended’;
   6. Choice of seat is not enough to displace the preference for the ‘substantive law governing the contract’ to apply to the arbitration agreement [iv];
   7. In the absent of law governing the contract, the seat will not be applied to the contract or to the arbitration agreement[v]; and
   8. In absence of an express agreement, the law ‘applicable to the arbitration agreement’ will be the ‘law of the seat’ which is most closely connected to that issue, i.e. being a neutral forum, selected by the parties. 
   9. As it stand, courts are not required to conduct detailed textual analysis to determine a particular choice of law clause meets.[vi]
      1. Having considered the analysis of COL, in accordance to the common law positions[vii], the ‘closest and the most real connection’ with the arbitration agreement shall be the seat of the arbitration.[viii]
      2. In this case, parties had agreed to the use of the […] law as the seat governing the arbitration, as it is neutral to the parties and on the same reason, the same can be construed that the law governing the contract has the ‘closest and the most real connection’ with the seat shall be […].[ix]
4. On such reason and on balance, I FIND AND HOLD THAT, the law governing the contract is […].

 
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[i] Sulamerica v Enesa[2013]1WLR102
[ii] Enka v Chubb[2020]UKSC38
[iii] Lancashire CC v Municipal Mutual[1997]QB897:verba ita sunt intelligenda ut res magis valeat quam pereat, contract should be interpreted so that it is valid rather than ineffective.
[iv] Arbitration agreement is a contract; naturally should be governed by the substantive law governing the contract; but by applying the ‘doctrine of severability’, it rarely contradict the substantive law.
[v] The ambit of this exception is unclear. S.6 of the Arbitration (Scotland) Act 2010 create a default rule in favour of the seat being the law governing the arbitration agreement, when the choice of law governing the arbitration agreement is absent.
[vi] Kabab-Ji v Kout Food[2020]EWCACiv6
[vii] Sulamérica v Enesa Engenharia [2012] EWCA Civ 638
[viii] Kabab-Ji v Kout Food Group [2020] EWCA Civ 6   
[ix] Enka v Chubb[2020]UKSC38

This may not be common but may happen that a party may challenge on ground of perjury:
 
Perjury Challenge
 

1. During [When], a substantive issue was raised by the Respondent with regards to a witness whom were accused of perjury in another local court and  apply to the tribunal to dismiss the said witness testimony.
2. In response, the Claimant responded that:
   1. It is very irregular and rather late to raise any application to remove the witness’ statements; and
   2. Such accusation was merely an allegation that has not been substantiated.
3. Having heard  the deliberation of the parties, I allowed the witness to present his evidence and I now, would deal with the matters as the followings:
   1. Whether should the tribunal allow the application to remove the witness on grounds that he was accused of perjury in another local court?
   2. The Respondent has raised his concern over the reliability of the witness owing to the fact that the witness was accused of perjury in another local court, but no judgement on his perjury has yet been made; 
   3. The Claimant  responded that such application was made rather late, being irregular and without any proof of substantiation;
   4. I inclined to agree with the Claimant that there is no concrete evidence at hand to proof that the witness’ statements are not reliable; ‘therefore
   5. I HOLD to the ‘presumption of innocent’ that one is considered innocent unless proven guilty[i] and I shall determine the admissibility, relevance, materiality and weight of the evidence offered in accordance to the Art.27.4Rules; and
   6. I FIND, there is no ground to remove the witness and he is allowed to present his evidence.
4. Having to have spent time and resources dealing with this unsubstantiated matters, I HOLD the Respondent to bear the costs of this hearing amounted to […] to be paid to the Claimant.

 
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[i] Woolmington v DPP [1935] UKHL 1
 

When an arbitration agreement did not specifically spelt out the language use in the arbitration, party may mount a challenge on this aspect:
 
Language Use in the Arbitration
 

1. Parties disagreed on:
   1. The language of the proceedings;
   2. Respondent proposed that this should be in […] given the location of the dispute.
   3. Claimant disagreed and asserted that this should be in […] based on the location of the manufacturing.
   4. Following the disagreement, parties looked to me to give some direction.
   5. After due consideration, I ruled that the language for the arbitration shall be English and that I would give my reasons for this in this award.
2. During [When], a substantive issue was raised by the parties with regards to the language use in this arbitration which required my decision, of which I had ruled that this would be English.
3. Foremost, the ‘choice of language’ use in this arbitration is not available in the arbitration agreement.
4. The Respondent proposed that the language use in this arbitration should be in […] given the location of the dispute while the Claimant disagreed and asserted that the language instead, should be in […] based on the location of the manufacturing.
5. Having to consider these submissions, I now, would give my brief reasons as the followings:
   1. The choice of language must not limit a party's opportunity to pursue its claim due to a language barrier based on the doctrine of natural justice for ‘equal treatment’[i] or equality.[ii]
   2. Although the language used by the parties business dealings can be relevant but it is not the sole criteria adopted by the various jurisdictions.[iii]
   3. Art.22(1)ML provides that “The parties are free to agree on the language or languages […]. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings […]”, giving a wide array of discretion to the arbitrator to decide on this matter.
      1. Since parties had agreed to the ‘Choice of Law’ COL governing the contract to be similar to the English law, that is neutral to the parties, I am inclined to find such ground of neutrality to be the main basis for the party to arrive at an ‘implicit agreement’ or facta concludentia, i.e. the use of the same language for the contract, the arbitration agreement and so forth.
6. For such reason and on balance, I FIND AND HOLD THAT, the language use in this arbitration shall be English.[iv]

 
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[i] Art.18ML, “The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”
[ii] <http://arbitrationblog.kluwerarbitration.com/2014/05/06/the-choice-of-the-language-of-the-proceedings-an-underestimated-aspect-of-the-arbitration/>
[iii] Some jurisdiction recognised that the language use in the arbitration shall also be the language use in the contract, i.e. Art.20 International Chamber of Commerce Arbitration Rules ICC, “in the absence of agreement by the parties, the arbitrators should give ‘due regard’ to all relevant circumstances, including the language of the contract" and Art.18 Rules of the International Centre for Dispute Resolution Arbitration Rules ICDR, "the language (s) of the arbitration shall be the language(s) of the documents containing the arbitration agreement, subject to the power of the arbitral tribunal to determine otherwise."
[iv] Art.19(1) UNCITRAL Rules 2010, “Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings.”

Arbitrator may rely on its ability to decide on its jurisdiction as in competence-competence, yet it is often that party may challenge a tribunal’s jurisdiction on many areas such as:
 
Jurisdictional Challenge
 

1. Respondent raised an objection to my jurisdiction to hear the allegations of tort asserted by Claimant. The objection was timely made in accordance with Art. 23.2 of the Rules, “A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defence or, with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the purpose of a set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.”
2. I wrote to the Parties’ representatives, by letter dated [DATE], and set a schedule for written submissions on the jurisdictional issue.
3. Subsequently, I heard the deliberation by the parties and asked the parties to consider whether they wished me to rule on the jurisdictional issue immediately or defer the issue to the Final Award as I am permitted to do by Art.23.3 of the Rules, “The arbitral tribunal may rule on a plea referred to in paragraph 2 either as a preliminary question or in an award on the merits. The arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court.”
4. The Parties jointly determined that they wished to have the issue dealt with as part of the Final Award which they confirmed by letters dated [DATE].
5. I now deal with the jurisdictional issue as the followings:
   1. Art. 23 of the Rules provides that the arbitral tribunal shall have the power to rule on the objection that it has no jurisdiction.
   2. It is undisputed that the contract entered into between the Parties contains no agreement to arbitrate. The Parties’ Submissions on the question of jurisdiction agree that, consequently, my jurisdiction is founded on the letters dated [DATE].
   3. The plain language of the letters of as quoted above refers to […],  therefore the claims of tortious conduct are closely connected to the contract claims as [Who] owed a duty of reasonable care to accurately represent the capabilities of [What] to perform the work specified in the contract.
   4. The language used by the Parties in the said letters does not expressly refer to the legal nature of the claims asserted by the Parties. I find that especially significant given the fact that the letters were written after the dispute had already arisen and been pending for almost a year i.e. at a time when the Parties knew or should have known the nature of their dispute.
   5. If the Parties had intended to limit the arbitration to claims sounding in contract they had the ability to do so.
   6. It is well-settled that arbitration clauses are to be broadly construed.
6. Accordingly, I FIND that the language of the letters dated [DATE] is sufficiently wide to encompass the claims of tortious conduct raised by [Who] which are closely linked with the contract claims; and 
7. I HOLD that I have jurisdiction to hear the allegations of tortious conduct set forth in [Where] dated [DATE].

Another common challenge posed by a party especially when the member of the tribunal is a famous personality.
 
Impartiality or independence Challenge
 

1. During [When], a substantive issue was raised by the parties with regards to my impartiality or independence.
2. The Respondent challenged my jurisdiction by alleging that it had come to light:
   1. I may have past business and personal relationship with […];
   2. […] and I may have been members of […] since it opened […];
   3. The Respondent is fearful that there might be an opportunity for the Claimant to exert some influences on my decision;
   4. I should have disclosed this relationship as it falls within the borderline of the orange and red lists of the IBA Guidelines on Conflict of Interest ‘IBA’; and
   5. I stated that I had no prior knowledge of […] being a member of the […] as it had some prestigious members and generally opens to the public for membership.
3. Having to consider this submission, I now, would deal with the challenges as the followings:
   1. Whether I may be challenged in such circumstances that may give rise to justifiable doubts as to my impartiality or independence, as per Art.12(2) of the Law? If so, under what circumstance shall my ‘impartiality or independence’ be affected? If not, what are the available options for the parties and myself, to take?
   2. Pursuant to Art12(1) of the Law, it states, “[…], he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.”
   3. I am aware that the Law separates ‘independence’ and ‘impartiality’, while the English law does not. Therefore, I shall clarify both in this award.
   4. The notion of ‘impartiality’ involves bias by an arbitrator towards one party, with the English test of Porter v Magill [2001] UKHL 67, “whether a "fair minded and informed observer", having considered the facts, would conclude that there was a "real possibility" of bias”, which was also reference in the case of Davidson v Scottish Ministers (2002) SC 205.
   5. In accordance to the Law, be it the Model Law, Act 1996, imposed a specific requirement on the tribunal to act fairly and impartially between the parties, as the fundamental principle of arbitral proceedings.[1]
   6. Thus, on impartiality, one ought to consider whether the tribunal can resolve the dispute objectively as stated in Phillip Brothers v Societe Drexel Burham Lambert at autres.
   7. It was also held in Reasuransi Umum Indonesia v Evanston Insurance Co (1992) 92 Civ. 4623 (MGC) that ‘partiality will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.’
   8. The notion of independence has been construed as relationship between the arbitrator and the parties which could mean prior or present personal or business contact with one of the parties and with this regard the persuasive statement, that being a ‘Facebook friend’ without more is insufficient basis for recusal.[2]
   9. I am also aware of the IBA has provided a set of ‘soft laws’ in this matter that I had adopted as a principle to proof my stand;
   10. Foremost, doubt as to my ‘impartiality or independence’ is justifiable as in accordance to Art.2(c)IBA, when a reasonable third person, having knowledge, would reach the conclusion that there is a likelihood I may be influenced by factors other than the merits of the case. In the circumstances as described, as per Art.2(d)IBA, in the ‘Non-Waivable Red List’.
   11. In view that my acquaintance was a relationship with another person for one of the parties, through membership in the same professional association, or social or charitable organization, or through a social media network, such description falls within the ‘Green List’ as per Art.4.3.1.IBA, ‘justifiable doubt’ therefore, does not arise.
   12. On this ground, I would have make the necessary disclosure, if prior to my appointment I would have known […] is also the member of […], as required under Art.3(a)IBA and Art.12(1) of the Law. I affirmed that such would not affect my ‘independence or impartiality’, as per Art.3(c)IBA.
   13. The options for the party to mount a challenge on my ‘independence or impartiality’, shall within fifteen days after becoming aware send a written statement of the reasons for the challenge to me. Unless the other party agrees to the challenge, I shall then decide on the challenge, pursuant to Art.13(1) and Art.13(2) of the Law. Since the lapsed of the 15 days from the date of discoveries […]-months ago, there has been ‘no challenge’ posed by any party, the rights to challenge on this matter is deemed waived in accordance to Art.32 of the Law.
   14. In considering my options, I shall have the power to rule on my own jurisdiction as per Art.23 of the Law, to accept such appointment and proceed with the arbitration.
4. I FIND AND HOLD THAT, I had the competence to rule on my jurisdiction and I am satisfied that I have the jurisdiction to determine all the matters submitted to me by the parties as per Art.16(1) and Art.23 of the Law.

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[1] G. Herrmann, ‘The Arbitration Agreement as the Foundation of Arbitration and its Recognition by the Courts’
[2] Advisory Committee on Judicial Ethics of the James State Unified Court System, 2017.

Party may mount various challenges to derail a hearing and the most often in international arbitration is:
 
Challenge on Lex Arbitri

1. In the Hearing dated [DATE], the Claimant, stated that the seat should be […], so the law governing this arbitration would be the […] law, based on the reason that the […]-convention required that the arbitration should be located in the place the contract was made which was […].
2. The Respondent alleged that the seat should be […] as this is the location of the […].
3. As both parties having disagreed, both said it would be up to the arbitrator to decide and I advised the parties that I would do so and include it as part of my final award in which case, I now do so as the followings:
   1. I am guided that the ‘judicial seat of the arbitration’, which is also the ‘place of arbitration’ where the lex arbitri i.e. the applicable law governing the arbitration, resides.[i]
   2. Having considered the analysis of ‘Choice of Law’ COL, in accordance to the common law positions[ii], the ‘closest and the most real connection’ with the arbitration agreement shall be the seat of the arbitration.[iii]
   3. I am guided by […][iv] that the applicable law in the absence of choice: “To the extent that the law applicable to the contract has not been chosen […], the contract shall be governed by the law of the country with which it is most closely connected[…].”
   4. It does not specifically mention as to the ‘seat’ and the […] is an instrument of general application, it must be applied in all types of legal proceedings in the territory of […], including in arbitration. It does not specifically provide that the arbitration should be located in the place the contract was made which was […] if the characteristic performance cannot be determined i.e. […] is the location of the […], disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.[v]
   5. In this case, parties had agreed to the use of the […] law as the substantive law governing the contract, as it is neutral to the parties and on the same reason, the same can be construed that the ‘judicial seat’ which is the ‘closest and the most real connection’ with the arbitration agreement shall be England.[vi]
4. On such reason and on balance, I FIND AND HOLD THAT, the seat of arbitration is […] and the […] shall be the lex arbitri governing this arbitration.

 
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[i] Art.20(1)ML, “The parties are free to agree on the place of arbitration.  Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal […]”
[ii] Sulamérica v Enesa Engenharia [2012] EWCA Civ 638
[iii] Kabab-Ji v Kout Food Group [2020] EWCA Civ 6   
[iv] Rome Convention 1980
[v] Art.4(5) Rome Convention 1980
[vi] The use of ‘England’ or ‘England and Wales’ is unlikely to cause any problems as both share one jurisdiction in relation to the administration of justice as the ‘judicial seat’.

One party, in the view of not succeeding in its case, may offer to the other party to settle amicably. In the event that an offer is made, the tribunal must avoid of knowing the content of the offer at all costs, to maintain impartiality. The tribunal must make a decision such as:

Calderbank Offer

1. In the Hearing dated [DATE], the Respondent wanted to make a ‘settlement offer’ to the Claimant in a ‘sealed-envelope’.
2. After hearing the submission of the parties with regard to the ‘settlement offer’:
   1. I would foremost presumed that the Respondent has offered a ‘Calderbank Offer’ to the Claimant to settle their dispute.[1] A ‘Calderbank Offer’ is a ‘without prejudice save as to costs’ offer to settle at a sum greater than that awarded.
   2. Having to consider that ‘settlement of dispute’ is of the paramount importance in any arbitration, I will have to consider whether the Claimant would reasonably accept the offer? If so, I shall only require to issue a ‘consent award’ to settle the dispute.
   3. If the offer was rejected on unreasonable ground, I may award cost to the losing party, departing from the doctrine of ‘costs follow event’ as in the case of Carver v BAA plc [2008] CA 22 and other authorities[2].
3. I DIRECTED the parties shall deposit with me, a sealed envelope, only at the end of the hearing, which is to contain either a sealed offer or a statement that no offer has been made.

 [Choose either]

1. At the end of the Hearing, I FIND that the ‘sealed envelope’ contained ‘no offer has been made’. I will not depart from the general rule that ‘cost shall follow event’ and I HOLD that the losing party shall pay the other party the costs of the arbitration which I shall determine, in section [S. Cost of the Arbitration], of this award.

  [Or]

1. At the end of the Hearing, I FIND that the ‘sealed envelope’ contained and offer of […]. However, the Claimant did not accept the offer. Therefore, I will depart from the general rule that ‘cost shall follow event’ and I HOLD that the party that rejected the offer pay the other side's costs even though it "won" on the merits of the case, in section S. Cost of the Arbitration, of this award.

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[1] Tramountana Armadora v Atlantic Shipping[1978] 2 All ER 870; Cutts v Head [1984] Ch 290; Centreland Management v HSBC Pension Trust [2013] EWHC 3238 (Ch.)
[2] Vogelaar v Callaghan [1998] 1 IR 88, Pepys v London Transport Executive [1975] 1WLR.234; Multiplex Constructions (UK) Limited v Cleveland Bridge UK Ltd [2005] EWCACiv139; Cleveland Bridge Dorman Long Engineering Ltd [2008] EWHC 2220 (TCC).

A situation may arise when no party is successful completely on their claims. As such the tribunal may apportion costs such as:
 
Awarding Costs when No One is Completely Successful
 

1. In this case, neither party was completely successful.
2. […] prevailed on its claim for reimbursement but to a lesser extent than it had claimed.
3. […] also prevailed with respect to Respondent’s counterclaim.
4. […] prevailed on the jurisdictional issue.
5. In these circumstances, and taking note of the costs wasted in the jurisdictional issue, I FIND that […] shall pay […] 75% of the reasonable costs in this arbitration.
6. With respect to the Arbitrator’s fees and expenses, which I assess and settle at the sum of [Sum];
7. For the reasons stated above, I find that […] shall pay 25% of my fees and […] shall pay 75%.

There are situation when parties seek for granting of any other amounts that the tribunal sees fit, yet maintained that the tribunal not to act, ‘ex aequo et bono or as amiable compositeur’ … this is a sample approach.
 
Any other amounts the tribunal sees fit

1. In the Hearing dated [DATE] and the SOC, dated […] the Claimant, seek the tribunal to grant any other amounts that the tribunal sees fit.
2. What the ‘tribunal sees fit’ imply that it shall be based on the principle of ‘ex aequo et bono or as amiable compositeur’ or ‘according to the right and good’.
3. As both parties have excluded any powers of the arbitral tribunal under Art.28(3) of the Law, which state, “the arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.”; and for the reasons that I had given in para […];
4. I FIND AND HOLD THAT, I shall not make any order on the amount, that I see fit.