Arbitrators seeing aspects of the dispute that parties don’t argue is not new. But discussions on how to deal with that situation usually presume the omission is unintentional. Sometimes, but surely not always. The possibility of intentional omission needs more weight in arbitrators’ analysis of how to handle the situation.
Miles Law (“Where you stand, depends on where you sit”) may not be positive law adopted by any country or international body. But, like any universal law, for example the laws of physics or the more well-known Murphy’s Law, it surely affects arbitrations. Arbitrators sit in different places from in-house counsel. This creates important differences on where they stand on dealing with arguments that might have been but were not made in an arbitration.
Real world situations of omission seen by arbitrators were addressed in several practical forums recently. These focus on what, if anything, arbitrators should do when they see issues not raised by the parties.
For example, a recent CLE program, “The Law According to Whom? How Arbitrators ‘Get It Right’”, was sponsored by the International Dispute Resolution Committee of the Dispute Resolutions Section of the New York State Bar Association. Just over two years ago “The Resolution Roundtable”, a blog sponsored by that same section, had over twenty comments about this topic.