Pat Rabbitte (Dublin South West, Labour)

The Minister has clearly focused on this and has made up his mind. He has explained why he is going the way he is. I wish to put on record some advice in order to explain my puzzlement as to why the proviso on bad faith is omitted. I will quote from the document to which I previously referred. It states:

An amendment proposed at Committee Stage would have granted such immunity to arbitrators and arbitral institutions, specifically in the absence of bad faith. As the Bill enters Report Stage, the immunity provision has been retained, although, curiously, it has been divested of the proviso as to bad faith. Section 22(1) of the 2008 Bill now declares baldly that an arbitrator "shall not be liable in any proceedings for anything done or omitted in the discharge or purported discharge of his or her functions". Section 22(2) applies the same immunity from suit to "an employee, agent or advisor of an arbitrator and to an expert appointed under Article 26". This is a curious provision. Why are these parties granted immunity or exclusion of liability? Section 22(3) covers those responsible for appointing an arbitrator, who are granted immunity from liability for anything done or not done in connection with the performance of that role. It is not clear why the proviso as to bad faith has been lost. The reasons for immunity from liability for arbitrators may be obvious: above all, immunity incentivises an honest and forthright arbitral process and avoids an awkwardly defensive approach on the part of the arbitrator. However, where an arbitrator has deliberately acted mala fides he or she should be responsible for the consequences.

The document continues. As the Acting Chairman has asked us to speak to amendments rather than to sections I hope it makes the basic point. I take the opportunity on this amendment to make that general point about the exclusion of the bad faith proviso.

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