What information can arbitrators take into account to decide a case?
· Must they consider only the evidence which has been accepted in the record?
· Or can they take their own commercial knowledge into account?
· Can arbitrators draw inferences from the absence of evidence they know should be out there, but which has not been offered?
· If they think Counsel has ignored or failed to cover points the arbitrators consider should have been developed and taken into account, can they take the initiative in questioning witnesses to get evidence on the point and, in doing so, potentially take the matter in a different direction from what counsel intended?
The importance of maritime arbitration has never been greater, and this is so in all the leading maritime centers around the globe. In many cases, the stakes are high and the matters to be resolved are complex, both factually and legally. If we consider why sophisticated commercial enterprises chose arbitration to resolve disputes, a key reason is the commercial experience and knowledge of the arbitration panel. In a specialized business arena such as shipping, it makes a big difference to the dispute resolution process if the parties are sitting down with arbitrators who understand the commercial context of the claims they are asked to resolve. This is a key reason to use arbitration. In my view, it not only is appropriate for arbitrators to use their own commercial knowledge and experience in deciding cases, it is a main reason to appoint them.