SHELL GAS LANKA LTD v. ALL CEYLON COMMERCIAL & INDUSTRIAL WORKERS UNION AN

018-SLLR-SLLR-2000-V-3-SHELL-GAS-LANKA-LTD-v.-ALL-CEYLON-COMMERCIAL-INDUSTRIAL-WORKERS-UNION-AN.pdf


SHELL GAS LANKA LTDv.
ALL CEYLON COMMERCIAL & INDUSTRIALWORKERS UNION AND OTHERS
COURT OF APPEALHECTOR YAPA. J.,
CA 587/9717th AUGUST. 199923rd SEPTEMBER. 199912th MARCH, 1999
Industrial Disputes Act – S.4(l). S.17(l) ■ Arbitration – Quashingappointment of Arbitrator – Arbitrator making observations beforehearing – Whether it is prejudicial to an impartial determination of dispute
Bias – Likelihood of Bias – Duty to see whether a Settlement is possible
Can the Record be contradicted.
The Minister of Labour acting in terms of S.4(l), referred a dispute forsettlement by Arbitration. When the dispute came up for the first timeafter having heard the parties with regard to the background of thedispute the Arbitrator made certain observations.
The Petitioner contends that the said observations were prejudicial to animpartial determination of the dispute and that the said observationmanifested a predetermination of the dispute by the 2nd Respondent. ThePetitioner informed the Arbitrator they do not wish the Inquiry tocontinue before the 2nd Respondent – Arbitrator. The 2nd Respondentrefused to accede to the said request.
Held :
It is not open to the Petitioner to file a self serving affidavit for the firsttime before the Court of Appeal and thereby seek or attempt to contradicta judicial or quasi judicial record.
If he intends to contradict the record he should have filed thenecessary papers before the Tribunal and initiated an inquiry andobtained an order from such authority in the first instance. 2
(2)When a dispute is referred to an arbitrator for settlement byarbitration, it is the recognised practice to explore the possibility ofconciliation in the first instance. In this process views are exchanged and
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Shell Gas Lanka Lid. u. All Ceylon Commercial & Industrial
Workers Union and Others (Hector Yapa, J.)
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even the Arbitrator himself may express his views with the sole object ofreaching a settlement.
It would be a serious error to think that either a Judge or anArbitrator would shut his mind to the evidence presented once asettlement has failed, as such views are expressed in attempting to bringabout a settlement.
A Judicial Officer is a person with a trained legal mind so that he willhave to take a decision having regard to the evidence in this case, besideshe is required to give reasons for his reasons.
In law what is material is not the subjective belief of the Petitioner inthe issue of bias, it is an objective test.
In the present case there must appear to be real likelihood of bias.There must be circumstances from which a reasonable man would thinkit likely or probable that the 2nd Respondent Arbitrator would favour oneunfairly at the expense of the other.
The Petitioner's case regarding bias against the 2"d Respondent isbased on surmise and conjecture which is not sufficient.
APPLICATION for a Writ of Certiorari and/or Prohibition.
Cases referred to :
K. v. Jayawardane 48 NLR 497 at 503
Cunawardena v. Kelaart 48 NLR 522
Seebert Silva v. Aronona Silva 60 NLR 272
Ceylon Tea Plantations Co. Ltd., v. Ceylon Estates Staff UnionSC 211/72 SCM 15. 05. 1974
Richard Pieris & Co. Ltd., v. Wijesiriwardena 62 NLR 233 at 235
Muncipal Council of Colombo v. Munasinghe 71 NLR 223 at 225
Kumarasena v. Data Management Systems Ltd.. (1987) 2 SLR 190at 200
Ceylon Tea Marketing Ltd., v. Prepacked Exports (Pvt) Ltd., andOthers (1998) – 2 SLR 146
The Commonwealth Concilliation & Arbitration Commission andOthers – Exparte The Anglosian Croup (1969) 122 CLR 546
Saparamadu v. Joseph 68 NLR 200
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Daya Wethlhasinghe u. Mala Ranawake (1989) 1 SLR 86
Perera v. Hasheeb 1 Sri Kantha LR 133 at 145
Nadarajah Ltd., v. Krishnadasan 78 NLR 255
Metropolitan Properties Co. (F.C.C.) Ltd., v. Lannon and Others(1968) All ER 304 at 310
In Re Ratnagopal 70 NLR 409 at 435
Faiz Musthapha P.C.. with Nigel Hatch for the Petitioner.
Ms. Chamantha Unamboowe with Athula Perera and AyanthiAbeysekerafor l51 Respondent.
Cur. adv. vult.
July 25, 2000.
HECTOR YAPA, J.This is an application for a writ of certiorari andprohibition. A writ of certiorari is sought for the purpose ofquashing the appointment of the 2nd respondent as arbitratorand his order dated 23. 06. 1997 contained in PI3, where hedecided to continue with the arbitration proceedings. A writ ofprohibition is sought to restrain the 2nd respondent frominquiring into and determining the dispute referred to himby P5 and P5 A. Briefly the relevant facts relating to thisapplication are as follows. The petitioner employedK. Hemachandra as a bowser driver attached to theOrugodawatta Branch of the petitioner company. On29. 12. 1996 the said driver while driving a liquid petroleumgas (LPG) tanker owned by the petitioner company, met withan accident inside the Lanka Wall Tile factory premises atMeepe. The accident resulted in the releasing of approximately500 kgs. ofL. P. Gas, leading to the formation of a vapour cloudwhich was subsequently dispersed. The driver thereafterdrove the bowser back to the petitioner’s depot at Orugodawattafrom Meepe without the prior approval of his superior officersof the petitioner company. Since the driver had driven the saidbowser with a potential gas leak which was highly combustibleon the public road, risking damage and injury to the public, thesaid driver was asked to show cause why disciplinary action
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Shell Gas Lanka Ltd. v. All Ceylon Commercial & Industrial
Workers Union and Others (Hector Yapa, J.)
173
should not be taken against him by the petitioner company(vide PI and PI A). Consequent to an inquiry where the saiddriver K. Hemachandra was found guilty of charges relating togross negligence and gross misconduct, his services wereterminated by letter dated 17. 03. 1997. (vide P2). Whenthe said action was taken by the petitioner company, thelsl respondent trade union by writing dated 31. 03. 1997,(vide P3) gave the petitioner company ten days notice of tradeunion action and commenced a strike from 02. 05. 1997,causing great inconvenience and hardship to the consumerpublic and heavy loss and damage to the petitioner company.
Therefore, on 08. 05. 1997 a memorandum of settlementwas entered into under the Industrial Disputes Act, No. 43of 1950 as amended between the petitioner company andthe 1st respondent union (vide P4 to P4C). However there wasno agreement between the parties on the question ofreinstatement of the bowser driver K. Hemachandra for thereason that the petitioner company was not prepared tocompromise on its undertakings such as the introduction ofinternational safety standards in Sri Lanka. Therefore thethen Minister of Labour appointed the 2nd respondent as thearbitrator acting in terms of Section 4(1) of the IndustrialDisputes Act and referred the following disputes for settlementby arbitration. The said reference to arbitration is asfollows. “Whether the termination of employment ofMr. K. Hemachandra, Bowser Driver, attached to OrugodawattaBranch of Messrs Shell Gas Lanka Ltd. by the said companyis justified and if not, to what relief he is entitled." (Vide P5 &P5A). It was submitted on behalf of the petitioner company thaton 12. 06. 1997 when this dispute came up for the first timebefore the 2nd respondent arbitrator, he after having heard theparties with regard to the background of the dispute made theobservations as set out in paragraph 21 of the petition. Brieflythe 2nd respondent's observations are as follows.
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That the petitioner had inflicted "capital punishment" onthe said driver, whereas some lighter punishment shouldhave been given.
As a result of the termination of the said driver's services,he had now been rendered jobless and could therefore actagainst the management as he knew everything about thepetitioner company.
The 2nd respondent told Mr. Nihal de Silva the PersonnelManager of the petitioner company, that he should bemore understanding and cultivate cordial relationshipsand harmony with the workers, as unlike in the past themanagement today should be close to their workers.
The act committed by the said driver was not deliberateand that any driver could meet with an accident and thattherefore the punishment imposed on him was too harsh.
That the 2nd respondent having refixed the said arbitrationfor 23. 06. 1997, repeated not less than three times to thepetitioner's Counsel and to the Personnel ManagerMr. Nihal de Silva that, the 2nd respondent would bepleased if by the next date the petitioner reinstated thesaid driver.
The petitioner company was therefore of the view that thesaid observations of the 2nd respondent were prejudicial to animpartial determination of the said dispute and further thesaid observations manifested a pre determination of thedispute by the 2nd respondent. Thereupon on the next date ofthe arbitration inquiry namely on 23.06. 1997, the petitioner'sCounsel met the 2nd respondent in the chambers prior tothe commencement of the sittings and informed the 2ndrespondent that he had disqualified himself from hearing thedispute, so that the petitioner did not wish the inquiry' tocontinue before the 2nd respondent. Since the 2nd respondentrefused to accede to the said request of the petitioner's
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Shell Gas Lanka Ltd. u. All Ceylon Commercial & Industrial
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Counsel, he formally supported a motion alleging that theobservations made by the 2nd respondent on 12. 06. 1997,indicated clearly and unequivocally that the 2nd respondenthas already decided that the termination of the services of thedriver K. Hemachandra was unjustified and that he should bereinstated by the petitioner company. It was further statedthat no purpose will be served by proceeding with the inquirybefore the 2nd respondent and moved that he (2nd respondent)should not proceed to inquire into the said dispute, so as toenable the parties to have the matter in dispute transferred tosuch other arbitrator as the Minister of Labour may be pleasedto appoint (Vide P12). However the 2nd respondent by this orderdated 23. 06. 1997 marked P13, held that he was devoid of anypower to transfer the said dispute referred to him. He furtherstated that when a dispute was referred to an arbitrator fordetermination, it was his duty to see whether a settlement waspossible and therefore he (2nd respondent) was not acceptingthe matters stated by the Counsel for the respondent company(petitioner company) and decided to proceed with the inquiry.Therefore in the present application the petitioner company isseeking to obtain the relief referred to above by the issue of awrit of Certiorari and a writ of Prohibition.
While this application was pending before the Court ofAppeal for notice, the 2nd respondent had commenced therecording of evidence in the arbitration proceedings. Whenthis application was supported in the Court of Appealon 24. 07. 1999, the Court of Appeal by its order dated17. 09. 1997 refused notice. Thereafter the petitioner companyinvoked the jurisdiction of the Supreme Court by way of specialleave to appeal. On 25. 08. 1998 the Supreme Court grantedthe petitioner company relief by setting aside the said order ofthe Court of Appeal refusing notice and directed the Court ofAppeal to issue notice on the respondents and thereafter toproceed to hear and determine the application. The SupremeCourt in addition directed the 2nd respondent arbitrator to stayall proceedings until the matter is finally decided by the Courtof Appeal.
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At the hearing of this application learned Counsel forthe 1st respondent union did not contest the correctness orotherwise of the observations attributed to the 2nd respondentas having being made on 12. 06. 1997. contained in PI2.However it is to be observed that the proceedings of 12. 06.1997 marked P9 only contain a reference that the parties haddiscussions before the arbitrator with a view to arrive at asettlement. The petitioner in paragraph 22 of the petitioncomplains that the proceedings of 12. 06. 1997 as recorded inP9 are defective and do not contain a true and accuratereflection of the matters pleaded therein. Therefore thepetitioner has annexed marked P10 an affidavit from Nihal deSilva, Manager Human Resources and a fax message sent bysaid Nihal de Silva to their lawyer marked P10A to support thisposition raised by the petitioner. However it is to be noted thatthe petitioner has not tendered the said affidavit marked P10and the fax message marked P10A before the 2nd respondentarbitrator and made an application to have the proceedings of12. 06. 1997 corrected on the lines as referred to in the saiddocuments, if that was the correct position. Besides in view ofthe reference in the order of the 2nd respondent arbitrator dated23. 06. 1997 where he has stated that he was not accepting thematters stated by the Counsel for the respondent company,(petitioner company) it became all the more necessary for thepetitioner to have taken steps to get the proceedings dated12. 06. 1997 corrected. In these circumstances it was wrongfor the petitioner to have stated that in the order of the 2ndrespondent arbitrator dated 23. 06. 1997 he (2nd respondent)did not dispute or deny having made the observationsattributed to him in the motion marked PI2.
Regard to this matter it is important to state here that, itis not open to the petitioner to file a self-serving affidavit for thefirst time before the Court of Appeal and thereby seek orattempt to contradict a judicial or quasi judicial record. If alitigant as the petitioner in this case intended to contradict therecord, he should have filed the necessary papers before theCourt or tribunal as the case may be and initiated an inquiry
CAShell Gas Lanka Ltd. v. AU Ceylon Commercial. & Industrial177
Workers Union and Others (Hector Yapa, J.)~
before such authority and obtained an order from suchauthority in the first instance. It is thereafter that he shouldraise the matter in the appropriate proceedings before theAppeal Court so that such Court would be in a position on thematerial before it to make a proper determination with thebenefit of the order of the deciding authority in the firstinstance. Therefore it is irregular for the petitioner to file a selfserving affidavit in the Court of Appeal with a view to add andto amplify the record or to contradict the record. Vide King v.Jayawardana!11 at 503, Gunawardana v. Kelaart!21 and SeebertSilva v. Aronona Silva131. In the light of this position theobservations attributed to the 2nd respondent arbitrator is notsupported by the record of the proceedings of 12. 06. 1997. Itis subject to this limitation that, there is no legal proof of thefacts asserted by the petitioner company that this Court couldconsider the question whether the said observations if it hadbeen made by the 2nd respondent constitutes bias so as todisqualify the 2nd respondent from inquiring into and makinga determination on the dispute that had been referred to him.
It was submitted by learned Counsel for the petitioner thatthe 2nd respondent was appointed by the then Minister ofLabour under Section 4(1) of the Industrial Disputes Act tofunction as an arbitrator. The 2nd respondent's appointment isstatutory and he is required to function within the ambit of hispowers and should act impartially. In other words he is undera duty to act judicially. Learned Counsel referred to Section17( 1) of the Industrial Disputes Act and submitted that the 2ndrespondent as an arbitrator is required to make an award asmay appear to him just and equitable. He referred to certaincases where the concept of just and equitable award or orderas the case may be has been interpreted. In the ease of CeylonTea Plantations Co. Ltd. v. Ceylon Estates Staff Union141Rajaratnam, J. has held that a just and equitable order mustbe fair by all the parties and never means safeguarding theinterest of the workmen alone. Tn Ehe case of Richard Pieris &Co. Etd. v. Wijesiriwardana,5> at 235 it was observed by T.S.Fernando J. that justice and equity can themselves be
] 78Sri Lcuika Law Reports1200013 Sri L.R.
measured not according to the urgings of a kind heart but onlywithin the framework of the law. In the case of MunicipalCouncil of Colombo u. Muncisinghe161 at 225 H.N.G. Fernando,J. made the following observation. “An arbitrator holds nolicence from the Legislature to make any such award as hemay please, for nothing is just and equitable which is decidedby whim or caprice or by the toss of a double-headed coin."It was contended therefore by Counsel for the petitioner thatit is settled law that an arbitrator is under a duty to actjudicially, fairly and impartially. The 2nd respondent in thecircumstances was under a statutory duty to inquire into thesaid dispute by hearing such evidence as may be tendered bvthe parties and thereafter make an award as may appear tohim just and equitable. However by proceeding to makethe observations attributed to the 2nd respondent, he haspredetermined the dispute before pleadings being filed andevidence being recorded. Therefore Counsel submitted thatthe said conduct amounted to bias on the part of the 2ndrespondent. Counsel further referred to the fact that under ourlaw two tests have been applied following English law as towhat constitutes a disqualification due to bias. One such testbeing the reasonable suspicion of bias test and the other beingthe real likelihood of bias test. However it would appear thatthere is no significant difference in these two tests. Vide thecase of Kumarasena v. Data Management Systen^s Ltd.17’ at200. Counsel also cited the case of the Ceylon Tea MarketingLtd. v. Prepacked Exports (Pvt) Ltd. & Others181 where theSupreme Court observed that since the High Court Judge whoheard this matter appears to have expressed a concludedopinion on the merits of the case, it is desirable that the trialbe heard by another Judge and directed the senior High CourtJudge presiding in Court No. 1, to hear this case or to nominateanother Judge to hear this case. Therefore the contention oflearned Counsel for the petitioner was that the 2nd respondentarbitrator has prejudged the issue before him and thatno useful purpose would be served in proceeding with thearbitration inquiry before him.
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Shell Gas Lanka Ltd. u. All Ceylon Commercial & Industrial
Workers Union and Others (Hector Yapa, J.)
179
Learned Counsel for the 1st respondent on the other handargued that, in considering the question of bias, what isimportant is not whether the petitioner feared that thearbitrator was biased on the basis that he had prejudged theissue before him, but whether the words attributed to the 2ndrespondent arbitrator showed a real likelihood of bias or areasonable suspicion of bias. Counsel contended that theobservations made by the 2nd respondent as referred to in P12were made at a stage prior to even filing of the statement ofclaim and that the 2nd respondent was infact exploringthe possibility of a settlement. The observations of the 2ndrespondent as contained in P12, merely indicate a possiblebasis as to how the dispute could be settled and this fact isevident from what has been stated by the 2nd respondentarbitrator in his order marked P13. It was a preliminary viewexpressed by him. This in no way suggests that the 2ndrespondent will shut his mind to the evidence that would bepresented, should a settlement fail. In support of this conten-tion Counsel cited the following cases. In the case of The Queenv. The Commonwealth Conciliation and ArbitrationCommission and others: Elxparte TheAngliss Group191 where theCourt held that the expression of an attitude of mind bymembers of the Commission which tended to favour theadoption of the principle of equal pay and even the fact that astep has been taken in furtherance of such a principle were notsufficient to engender a reasonable suspicion in the minds ofthose who came before the tribunal, or in the minds of thepublic, that the tribunal or its members might not bring fairand unprejudiced minds to the resolution of the questionarising before the tribunal. Accordingly, the application forprohibition was refused. In the case of Saparamadu v. Joseph!101,the Court held that in a prosecution for unlawful gaming,(Section 2 of the Gaming Ordinance) a Magistrate is notdisqualified, on the ground of bias, from hearing a case merelybecause he had earlier issued a search warrant in terms ofSection 5(1) of the Gaming Ordinance. The Court was of theview that it was wrong to suggest that merely because theMagistrate had taken a prima facie view, that he will be biased
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or incapable of approaching the case with an open mind. In thecase of Daya Weththasinghe v. Mala Ranaweke“11 it was heldthat a party seeking to establish bias undertakes a heavyburden of proof, Mere reasonable suspicion is not enough.A Judicial Officer is a person with a legally trained mindand Court will not lightly entertain an allegation of bias.The petitioner had failed to establish bias. Therefore learnedCounsel contended that in the present case also the2nd respondent arbitrator who has a trained judicial mind willbe in a position to examine the evidence presented with anopen mind.
It should be remembered that when a dispute is referredto an arbitrator for settlement by arbitration, it is therecognised practice to explore the possibility of conciliation inthe first instance. In this process views are exchanged by theparties and even the arbitrator himself may express his viewswith the sole object of reaching a settlement. Perhaps the viewsexpressed by the arbitrator may even indicate the possiblelines of settlement. However in the event of the parties failingto reach a settlement in respect of the dispute, then it is takenup for adjudication with the presentation of evidence by theparties. In such situations the views expressed by the partiesand even the arbitrator himself should be disregarded and thedispute has to be decided purely on the evidence presented. Itwould be a serious error to think that either a Judge or anarbitrator would shut his mind to the evidence presentedonce a settlement has failed purely for reason that certainviews have been expressed by the Judge or an arbitrator inattempting to bring about a settlement. After all, such viewsare expressed by a Judge or an arbitrator before evidence ispresented on a cursory examination of the material before him.Under these circumstances it would be wrong to assume thata Judge or an arbitrator will not change the views expressedby him earlier with regard to the dispute, once evidence hasbeen presented. A judicial officer is a person with a trainedlegal mind so that he will have to take a decision having regardto the evidence in the case. Besides, he is also required to give
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Shell Gas Lanka Ltd. v. All Ceylon Commercial & Industrial
Workers Union and Others (Hector Yapa, J.)
181
reasons for his decision. In the case of Perera v. Hasheeb 1Sriskantha,,2> at 145 G.P.S. De Silva, J. (as he was then)observed as follows. “It must be remembered, that a judicialofficer is one with a trained legal mind. It is a serious matterto allege bias against a judicial officer and that this Courtwould not lightly entertain such an allegation.” In the presentcase the 2nd respondent arbitrator, a president of the LabourTribunal with a trained judicial mind without doubt would beconversant with the principle that all – negotiations andrepresentations made during the process of conciliationcannot be taken into consideration once the negotiations failand that the dispute should be decided on the merits of thecase based on the evidence presented. Therefore whateverobservations that may have been made by the 2nd respondentarbitrator in trying to bring about a settlement would notengage his attention once he proceeds to decide the dispute onthe evidence adduced before him. One has to act on this basis,otherwise it would open the flood gates for a multitude ofapplications seeking that a particular Judge or an arbitratorshould be changed on flimsiest grounds and that the judicialsystem will become unworkable.
One should also take note of the fact that once a referenceis made to an arbitrator for the settlement of a dispute in termsof Section 4(1) of the Industrial Disputes Act, the Ministerhimself has no power to revoke the said order of reference. VideNadarqja Ltd. v. Krishnadasan1131. Therefore it would appearthat even though the Minister of Labour has no right to revokethe reference once made the petitioner company is seekingindirectly upon this application to change the arbitrator.This should not be permitted, since the available materialwould not justify such action and further it would lead tounnecessary delay.
Finally it is to be observed that the petitioner company hasstated in the petition that he has lost confidence in the 2ndrespondent arbitrator and that there would be a denial ofjustice if the 2nd respondent were to continue with the inquiry
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on the ground of bias. In law what is material is not thesubjective belief of the petitioner on the issue of bias. It is anobjective test. Lord Denning, M.R. in the case of MetropolitanProperties Co. (F.G.C.), Ltd. v. Laruion and Others1141 at 310outlined the test to be applied in determining the issue oflikelihood of the bias in the following terms. “In consideringwhether there was a real likelihood of bias, the Court does notlook at the mind of the justice himself or at the mind of thechairman of the tribunal, or whoever it may be. who sits in ajudicial capacity. It does not look to see if there was a reallikelihood that he would, or did, in fact favour one side at theexpense of the other. The court looks at the impression whichwould be given to other people. Even if he was as impartial ascould be, nevertheless, if right-minded persons would thinkthat, in the circumstances, there was a real likelihood of biason his part, then he should not sit. And if he does sit. hisdecision cannot stand.” It is to be observed that in Sri Lankaour Courts have shown a preference for the real likelihood test.In Re Ratnagopal1151 at 435T.S. Fernando J. formulated the testas follows. “Would a reasonable man in all the circumstancesof the case, believe that there was a real likelihood of theCommissioner being biased against him?
In the case of Kumarasena u. Data Management SystemLtd.(SupraJ a transfer of a case was asked for on the groundthat the Judge has prejudged the case when he enhanced thesecurity. The Court of Appeal at page 202 observed that “indoing so it may well have been that he (Judge) misdirectedhimself as to the relevancy to the question before him of thefacts on which he based his order and as to the correct positionin law. That by itself to my mind does not demonstrate bias oranything else that suggests that a fair and impartial trialcannot be held before him.” The Court further observed,that “I do not think these are circumstances from which areasonable man (weighing these circumstances) would thinkit likely or probable that the Judge did on this occasion orwould in the future favour one side unfairly at the expense ofthe other.”
CAShell Gas Lanka Ltd. v. AU Ceylon Commercial & Industrial183
Workers Union and Others (Hector Yapa, J.)
Similarly in the present case also there must appear to bea real likelihood of bias. In other words there must becircumstances from which a reasonable man would think itlikely or probable that the 2nd respondent arbitrator wouldfavour one side at the expense of the other. As Lord Denningobserved in the case of Metropolitan Properties Co. (F.G.C.) Ltd.v. Lannon and others(Supra) at page 310 “The reason is plainenough. Justice must be rooted in confidence; and confidenceis destroyed when right-minded people go away thinking; thejudge was biased.” In the present case, one cannot come tosuch a conclusion. Evidence has not been presented before the2nd respondent arbitrator. Only an attempt had been made toexplore the possibility of a settlement. Further the utterancesalleged to have been made by the 2nd respondent arbitratorhave not been legally established. Therefore the petitioner’scase regarding bias against the 2nd respondent arbitrator isbased on surmise and conjecture which is not sufficient.
Taking all these circumstances into consideration I holdthat the petitioner company has failed to establish that therewas a real likelihood of bias or a reasonable suspicion of biason the part of the 2nd respondent arbitrator. Therefore the reliefsought by the petitioner in this application is refused andaccordingly the application is dismissed without costs. The2nd respondent arbitrator may proceed with the arbitrationinquiry.
Application dismissed.