ED & F Man Sugar Ltd v Belmont Shipping Ltd [2011] EWHC 2992 (Comm) was a challenge application brought under section 68 of the Arbitration Act 1996 (1996 Act) on the ground of serious irregularity. It is notoriously difficult to succeed on a challenge under section 68, not least because the serious irregularity must also give rise to substantial injustice, both of which are high thresholds to meet. This decision provides some useful clarity on the scope of section 33 of the 1996 Act, which imposes a duty on the tribunal to "act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case". Decisions on the scope of section 33 have previously suggested that a tribunal does not need to submit full reasoning for its decision. Therefore, it is not altogether surprising that Teare J has determined that a tribunal need not assist the parties with further possible arguments and alert them to points that may support their case.

In this case, where the tribunal were dealing with a demurrage claim on documents alone, when one party failed to raise a case which could have been crucial to a decision in their favour, it was argued that the tribunal should have raised it for them. Literally, however, "putting their case" would naturally seem to involve allowing the party to deliver the arguments they wish to deliver. If the tribunal were to become involved in supplementing those arguments, this could arguably open a can of worms. One could foresee further issues of procedural unfairness whereby the tribunal effectively acted as counsel, supplementing the case of one or other of the sides. The tribunal could effectively become the advocates and invent further possible arguments and claims which could tip the balance in favour of one party or another. This is not to say that a tribunal may not do so, but it would seem unfair and impractical for it to be obliged to do so.

Costs implications of bringing up new arguments are also an important consideration, particularly in cases where parties have tried to keep costs down. The fact that this was a "documents only" procedure meant that what was ultimately a crucial point, did not come to light. ED & F, the claimants, argued that they should not be at a disadvantage because the parties had selected this type of limited arbitral process. Equally, however, where such a procedure is chosen, particularly where the charterers submitted only five pages of argument (with supporting documents), parties take the risk that there will be omissions.

This is a timely warning that, amidst the drive to limit time and costs in arbitration (not least in the new ICC Rules 2012), this must be balanced with a procedure that will do justice to the important arguments in the case and not overly restrict the exposition of these arguments. Nonetheless, it also reminds advocates of the need to be comprehensive in their preparations and ensure that important authorities in support of one's case are not overlooked, perhaps particularly in a documents-only arbitration. It should not be a tribunal's responsibility to fill in the gaps left by counsel.

For more detailed discussion of the factual background, see Legal update, Tribunal not obliged to alert party to potential argument (Commercial Court).

Case: ED & F Man Sugar Ltd v Belmont Shipping Ltd [2011] EWHC 2992 (Comm).