Wakilii

In Re - Arbitration Between Minter Kier (Africa) Limited; Ralli Brothers Ltd; In Re - Arbitration Ordinance, CAP. 22, Revised Edition (Miscellaneous Civil Case No. 16 of 1951 (Mombasa))

East African Court of Appeal · [1951] EACA 333 · 1951 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to remove arbitrator or set aside award on ground of misconduct arising from building contract dispute
Decision
Arbitrator removed and matter referred to fresh arbitrator to be appointed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that an arbitrator will not be disqualified merely because of bias inherent in his position as the employer's architect, but will be disqualified where he has demonstrated actual bias beyond that natural bias. Here, the architect arbitrator had purported to adjudicate on the dispute before it was properly referred to him and had informed the parties he had already made his final decision without hearing their case. This showed he had not kept an open mind but had pre-judged the issues, disqualifying him from acting. The matter was referred to a fresh arbitrator.

Outcome

Arbitrator removed and matter referred to fresh arbitrator to be appointed

Facts

The applicants entered into a building contract with the respondents with a clause providing that disputes should be referred to the arbitration of the employer's architect. In November 1950, a dispute arose concerning whether painting of the steel roof was included in the contract sum and whether cracks in the building were due to defective materials and workmanship. Neither party gave formal notice as required by the contract. Correspondence ensued between the applicants and the architect. In letters dated 31 March, 12 May, and 17 May 1951, the architect wrote that he had already given his final decision on the matters in dispute. The applicants applied to remove the arbitrator on two grounds: that he would be a necessary witness in the proceedings, and that he had pre-judged the issues without hearing their case.

Issues

  1. Whether an architect appointed as arbitrator under a building contract should be removed on the ground that he must be a necessary witness in the arbitration proceedings.
  2. Whether an architect arbitrator who has expressed strong opinions on matters in dispute before hearing the case should be disqualified from acting as arbitrator on the ground of pre-judgment.

Orders

  • The architect arbitrator is disqualified from acting.
  • The matters in dispute to be referred to a person to be appointed by the President or Vice-President of the Royal Institute of British Architects as provided in clause 26 of the contract, or to such other person or persons as the parties may by mutual agreement appoint.
  • The respondents to bear the costs of the application.

Rules and key headnotes

Arbitration — Architect Arbitrators — Standard of Impartiality Required
The Court will not relieve parties of their obligation to submit their dispute to an arbitrator of their choice simply because for reasons inherent in his position he is not in the ordinary sense impartial, but if for any reasons other than such as are inherent in his position there is ground for supposing the arbitrator would be biased, the Court will not compel the parties to refer to him.
Arbitration — Removal of Arbitrator — Test for Disqualification for Bias
To disqualify an arbitrator there must at least be a probability of bias which goes beyond the natural bias which an architect arbitrator is bound to entertain. An expression of opinion, however strongly worded, would not be sufficient by itself.
Arbitration — Architect Arbitrators — Right to Demand Fair Hearing
Although a contractor who contracts to submit disputes to an architect arbitrator must be held to that contract, the contractor has the right to demand that notwithstanding the architect's pre-formed views, the architect shall listen to argument and determine the matter as fairly as he can as an honest man.
Arbitration — Removal of Arbitrator — Pre-judgment of Issues
An arbitrator who has made up his mind on the issues to be decided without hearing one party's case and has informed that party of his final decision before the dispute is properly referred to him has failed to maintain judicial independence and has pre-judged the issues, thereby disqualifying himself from acting.
Arbitration — Arbitrator as Witness — Test for Disqualification
It is contrary to the principles of natural justice for a person to be both judge and witness in the same cause. An arbitrator will be disqualified if there is a reasonable likelihood that he will be a necessary witness in the arbitration proceedings, but not where different inferences are merely drawn from undisputed facts.

Legislation cited (1)

  • Arbitration Ordinance Cap. 22

Cases cited (4)

  • Bristol Corporation v John Aird & Co (1913) AC 241
  • Eckersley v The Mersey Docks & Harbour Board (1894) 2 QB 667
  • Jackson v Barry Railway Co (1893) 1 Ch 238
  • Hickman & Co v Roberts (1913) AC 229

Full judgment

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In Re - Arbitration Between Minter Kier (Africa) Limited; Ralli Brothers Ltd; In Re - Arbitration Ordinance, CAP. 22, Revised Edition (Miscellaneous Civil Case No. 16 of 1951 (Mombasa)) [1951] EACA 333 (1 January 1951)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.