“(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may— (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.”
“The question whether an arbitrator should be removed or the matter remitted to an arbitrator in the case of misconduct may well depend upon the answer to the objective question formulated by [Mance J] in Lovell Partnerships Northern…[at Page 99 quoted above]”
"It would not be appropriate to send the matter back to the same tribunal where there was a question of bias or the risk of pre-judgment or partiality. This would obviously be so where the basis of the appeal had depended upon bias or misconduct, but is not limited to such case."
“46…It was Y’s case that all or substantially all the delay was the actual fault and responsibility of Z; to that, as a matter of evidence, reliance was placed on the absence of effective notices under Clauses 23 and 25 to support this actually fundamental case. In essence, the arbitrators never grappled with this point, preferring in effect to say that because the Process Requirements are just that, namely a process, HS in this case for Y had to be seen to go through the process, even if the result was such as to lay the real fault and responsibility for the delays entirely at the door of Z. Because the arbitrators found that in a number of what they believed were important respects HS, either on the basis of inadequate or incomplete briefing or otherwise, did not consider whether, and if so to what extent, Y had caused or contributed to any of the Defaults and relied upon and referred to the MPRG recommendation, although the process which led to that recommendation was non-compliant with Clause 69.1.2(i), it never got around to considering what might have been considered to be a basic point, which was Y’s case that substantially all the delay was down to Z. There was a concentration on what HS did or did not do in relation to the possible responsibility of Y in fact for the delays but the tribunal did not consider the scenario that Z may have been responsible for all the delay. 47. I would be more understanding of the tribunal’s position if it had actually addressed that scenario… 48. At first blush, Z’s argument (that the tribunal was there making it clear that this was an important failure of the process and therefore in effect leading to non-compliance with the condition precedent Process Requirements) is not unattractive. However, the tribunal makes much of the fact that Z was alleging significant contributions to the delays by Y (see for instance Paragraph 410 of the award) but also of the fact that reports on submissions to HS consistently avoided any suggestion of Y either causing or contributing to the delays (see for instance Paragraph 412). The tribunal does not however consider whether it was factually justified for those making submissions to HS not suggesting that Y caused or contributed to delays. Put another way, the tribunal attributes a failure to comply with the conditions precedent to a failure to address possible (and one presumes something more than fanciful) contributions to causing delay by Y, primarily by employees or other agencies, but it does not consider what might be considered to be a very obvious material issue, which was Y’s case that Z was wholly or substantially responsible for all the delay. Put yet a third way but rhetorically: could HS or those advising HS be criticised as not complying with the Process Requirements if all the delay was in fact caused and contributed to only by Z?”