John Habergham, Myton Law, Hull U.K.
The London Maritime Arbitrators Association 2021 Terms have just been published by the LMAA and will take effect for appointments made on or after 1 May 2021.
The LMAA concede that there is a deal of “fine tuning” but there are also some significant changes.
The first reflects a development which has been forced upon very many businesses as a result of the recent pandemic. The new Terms specifically cater for virtual hearings. This aspect has to be considered at significant stages in any reference – when considering the arbitration procedure (paragraph 15 of the Terms) and also in completion of the Questionnaire.
There is a detailed and specific protocol in a new Sixth Schedule to deal with the conduct of such hearings.
So they reflect a development which was forced upon the LMAA but, I suspect, from contact I have had with judiciary that virtual hearings will outlast the pandemic. There is a solid case that, in international dispute resolution, there are significant cost savings to be made through their use, without in any way detracting from the integrity of the process.
In a similar vein, another matter which has been forced upon, certainly, the legal profession, as a result of the pandemic, there is now the facility for electronic signatures. This simply reflects the inability to do normal human things like meet in person.
A further significant change is with regard to witness statements and this reflects the judicial purge on the abuse of witness statements. There is a strong feeling that parties may have lost their way as to what the purpose behind witness statements should be – they deal in facts not legal arguments. So this is specifically referred to in the Fourth Schedule, paragraph 2.
There is also a veiled hint from the LMAA in their correspondence releasing the Terms, that the tribunals will use the discretion to impose costs sanctions for non compliance.
There is a welcome development with regard to appointment procedures.
The first is with regard to the appointment of a sole arbitrator and the Terms do away with the Arbitration Act 1996 requirement for service by one party upon the other that it intends to appoint a sole arbitrator as a result of the other party’s default.
There is then a further introduction to deal with the scenario whereby, typically on the run in to a fixed date to a hearing, one arbitrator is unable to act.
Whilst the Terms preserve the right to make an application to the court for removal or substitution to fill a vacancy, the Terms permit the Presi