![]() ![]() Young (Respondent's witness) concerning a specific issue he questioned the information relied upon and asked, "But where does it say that? This has been bothering me for a week and a half" (v) similarly, when the Arbitrator asked a question of Mr. I may have some further questions at the end, but we…I wanted to clarify …". Verta (Respondent's witness), the Arbitrator said, "I don't want to interrupt Mr. (iv) many of the interventions were to clarify a fact or an issue, for example, during the Applicants' cross-examination of Mr. (iii) upon hearing that the counter-claim was settled, the Arbitrator noted "So, all I will be dealing with is determining whether and to what extent Morrison Hershfield has established its claim without any concern about a set-off or a counterclaim?" (ii) after questioning any witness in the proceeding, the Arbitrator addressed counsel and asked, "Anything arising out of that?" and allowed counsel the opportunity to ask any desired follow up questions Vernaza, the Arbitrator notes that he has the Applicants' point, "but I want to make sure the witness has a fair opportunity to respond" 14).įurther evidence of the Arbitrator's continuous efforts to maintain balance and fairness in the Arbitration hearing is found in the words of the Arbitrator himself as follows: The court found that counsel did not show that it lacked opportunity to respond to the arbitrator's comments and questions and the record did not support counsel's characterization of the arbitrator's behavior as improper or prejudicial. The hearings involved highly technical and detailed subjects, about which the arbitrators had acknowledged substantive expertise and experience, as well as experience as arbitrators. The court further found that on review of the transcripts each of the panel members asked questions of the witnesses, often vigorously. The Court in Lummus held that the tribunal's questioning had been aimed at assisting the panel in understanding the issues and was appropriate to reaching an efficient and fair resolution of those issues. Ltda., where a party to an ICC arbitration attempted to have the award set aside on the basis, among other things, of allegedly inappropriately questioning of witnesses by the tribunal. Referenced in the above noted article, were reviews of several cases including Lummus Global Amazonas S.A. Boeing Satellite Systems International, Inc, 2010 ONSC 4023). when considering bias, whether actual or the appearance of bias, context matters ( Telesat Canada v. of Canada Ltd., 1992 CanLII 834 at para 13 (B.C. a challenge based on reasonable apprehension of bias will be unsuccessful without evidence to support the allegation beyond a mere suspicion that the hearing officer would not bring an impartial mind to bear. ![]() the inquiry is objective requiring a realistic and practical review of all the circumstances from the perspective of a reasonable person. the presumption of impartiality is high ( Wewaykum Indian Band v. ![]() the threshold for finding a real or perceived bias is high ( A.T. The elements necessary to finding a reasonable apprehension of bias and the level of proof required before an arbitral tribunal is removed by the court includes the following relevant principles:ġ. Simply stated, RapidLINK cannot be found to have waived their right to dispute the Respondent's claims simply because they complied with their contractual obligations. This does not amount to an acknowledgment of the Respondent's claims or a waiver of RapidLINK's right to dispute the Respondent's claims. However, RapidLINK did pursue the Respondent's claims against the Owner as part of their contractual obligation. The Applicants argued that had RapidLINK failed to pursue the obligations or claims advanced by the Respondent then they might have been liable directly for an issue with respect to an Owner default. The Applicants further submitted that the Respondent's argument that RapidLINK was supportive of the Respondent's claims until mediation and thereafter were "thrown under the bus" is simply inconsistent with, and ignores, the contract obligations, which pursuant to Section 10.4 of the DSA, required the Applicants to pursue any claims of the Respondent with the Owner in a timely fashion. ![]()
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