234 THE ADVOCATE
VOL. 77 PART 2 MARCH 2019
rules were revised and then adopted by the Centre’s board in November
2018 and took effect January 1, 2019.3 The Centre has also developed a Code
of Ethics which accompanies the Panel Membership Rules.
The application of the new Panel Membership Rules will raise many
interesting questions, potentially including the following:
1. Does the conduct at issue have any relevance to the suitability of
the panelist to sit as an arbitrator in the future?
2. What sort of conduct should result in a panelist being removed or
suspended from a panel?
3. To what extent should the Centre consider evidence outside the
decision which concludes that a panelist has committed an arbitral
error or misconducted him/herself?
4. Should it matter whether the misconduct alleged occurred in an
arbitration that was not administered by the Centre?
5. If a panelist is disbarred or struck from a professional register for
misconduct, is that a sufficient ground to remove a panelist?
6. Should the Centre itself reach any conclusion about the issue or
instead merely advise parties of the existence of the decision
regarding panelist misconduct?
Any of these questions, and many others, may be raised if the Centre
considers whether a panelist should face a sanction following a court finding,
or a complaint, of misconduct.
It is important to remember that the conduct of an arbitrator is subject to
review by a court but rarely will the arbitrator be entitled to make submissions
or put forward any evidence to the court. It will be the parties who put
forward the evidence. For example, in Hunt the evidence relied on by the
courts consisted of e-mails from counsel to either one of the arbitrators or
to his client reporting on conversations with an arbitrator and, in one case,
a note in counsel’s file.4 No evidence about the conversations was given by
counsel or any of the arbitrators.
The Centre expects that issues regarding the conduct of arbitrators will
be rare, but as arbitration continues to become an increasingly significant
dispute resolution process, it is important to safeguard its integrity for the
benefit of all participants.
1. 2018 BCCA 159 Hunt.
2. The arbitration in Hunt was not administered by the
3. The Panel Membership Rules may be found on the
Centre’s website: <www.bcicac.com>.
4. The documents were produced as part of the
enforcement of the original costs award, which was
set aside by the Court of Appeal.