An arbitrator’s notes do not form part of the record of arbitration proceedings, and the losing party, intent on a review, cannot compel the disclosure of the notes.
In Zamani Marketing and Management Consultants v HCI Invest 15 Holdco, the claimant instituted proceedings in terms of the Arbitration Act 1965 to review and set aside an arbitration award made by three arbitrators. Upon receipt of the record of the arbitration proceedings, the applicant requested the court to compel the arbitrators to disclose the arbitrators’ manuscript notes.
The court held that the arbitrators’ notes are not relevant to the arbitration award. Forcing arbitrators to disclose their notes could potentially stifle the freedom with which arbitrators should be permitted to approach their task of adjudication. The arbitrators should not be burdened with a duty to explain their notes. The parties choose arbitrators (or arbitration tribunals) based on the arbitrators’ attributes and competence, which includes the ability to take notes.
The arbitrator’s notes may record a number of subjects, including, evidence, impressions of a witness, a point of law or fact for consideration, a half-remembered authority, a reminder to collect the dry cleaning. The notes do nothing more than show what an arbitrator was thinking at a point in time in the proceedings. This is irrelevant in proceedings to review the decision. What matters is what the arbitration award contains, and how the proceedings were conducted.
The court correctly noted that without the freedom to take notes, the adjudicative function would be compromised. The prospect of a losing party dissecting an arbitrator’s notes to support a claim of irregularity would incentivise arbitrators either not to take notes at all or to take them in such a way that stultified the freedom of thought and enquiry that should be encouraged to secure sound adjudication.