Adv. Saada: (Counsel for the respondents): "We want the hearing to be purely professional-engineering, and not subject to the rules of law and certainly not to the laws of evidence, and so it was decided differently, otherwise there would have been an engineer here who is also a lawyer and we didn't want that."
The Honorable Arbitrator: "It's a shame you didn't take him."
Adv. Saada: No. It's a shame, Dan.
Adv. Nakar: First of all, it's a shame. True, I think it's a shame.
Adv. Saada: And then they wouldn't have paid another five years. Come on, really? Leave you alone.
The Honorable Arbitrator: I would have saved this case.
Adv. Saada: And they want to continue it, you understand? They don't want to. Because they don't know what...
Adv. Nakar: Since there are legal questions here, I think it would have been very helpful to have a lawyer sitting here in the
The Honorable Arbitrator: It's a pity."
- With regard to the Applicant's claim that the arbitrator conditioned the cross-examination on the receipt of the questions in advance by him, it can be learned from the transcript that the arbitrator's words according to which he stated: "No, I can see the questions of the interrogation and I will see if necessary...", were made for the purpose of streamlining and advancing the hearing, and against the background of an argument between counsel for the parties, while the respondents' attorney tells the applicant's attorney that he knew that the hearing was expected to end, and he replies, "I knew I was coming to investigate" (see Appendix 12 to the motion, p. 510).
- The same applies to the claim that the arbitrator sought to conduct an investigation without making a transcript in contravention of the appointment decision. In this matter as well, it would have been appropriate to refer to the context in which the words were made. (See the arbitrator's remarks, transcript of September 29, 2024, p. 515 of the application, line 19:Will you pay for the transcript?").
- The Applicant referred to the Arbitrator's statements at the meeting of September 29, 2024, at p. 522 of the Motion that the Respondents had said to the Applicant: "You ... We sink deeper into the mud. They don't. They have an interest..."; " But if he has a reason to disqualify the arbitration because..." The reference to these statements was also made without bringing the context of the statements, which were made against the background of a loud argument that broke out between the parties about the manner in which the arbitration should continue to be conducted, while the respondents raised arguments for the continuation of the arbitration process and respondent 2 claims before the arbitrator that he has lost his home and is in debt and that the applicant has more "air" and that no more meetings and delays in the provision of the arbitrator's opinion should be allowed. (See pp. 520-522 of the application).
- Moreover, a perusal of the minutes of the hearings held before the arbitrator can be found statements by the arbitrator (which were not mentioned by the Applicant), attesting to the arbitrator's desire to reach the truth, while treating both parties equally. Thus, for example, in the minutes of the hearing of June 22, 2023, the arbitrator says: "As an arbitrator, I want the truth for them and for you. I say, let's make an orderly bill of quantities according to the latest plans, according to how many cubic meters of concrete, how much iron, do you want? Do according to Dekel, according to words, and we will reach the truth". (Attached as Appendix 9 to the application, p. 211, lines 19-21).
- A reading of the minutes as a whole can be learned from the arbitrator's statements quoted in the application, as they were made in an attempt to conduct the arbitration efficiently and continuously and not to delay the clarification of the proceeding. Therefore, the transfer of criticism against any of the parties does not constitute disqualification, all the more so when the purpose of this review is to conduct the hearing properly and efficiently. (See "The Matter of Rabbi Kahneman" above, paragraph 21). A perusal of the minutes shows the mood and charged atmosphere that prevailed in the hearings before the arbitrator, who, as recalled, is a construction engineer (and not a jurist). The minutes indicate that the arbitrator is often required to "separate the hawks", in order to be able to continue the hearing continuously, as well as to deal with the conduct of the parties, the witnesses and their counsel, who were recorded in the transcript a large number of times as if they were talking together, talking to each other, arguing and shouting, while the arbitrator turned to them"Wait. Let's be cultural". (See, for example: Minutes of September 29, 2024, Appendix 12 to the Motion, pp. 426, 435; 437; 449; 490-491; p. 494; p. 496; p. 499; p. 502; p. 518; p. 525). The following are a handful of quotes from the transcript of the statements of the parties and their counsel: "I don't hear the arbitrator, you're bothering him"; "No, I don't bother. You're bothering me"; "Respect the arbitrator, I understand that... Respect the arbitrator"; "Stop the whole discussion, let us talk"; "You won't shout or raise your voice at me like that"; "Then shut up for a moment. Come on, really"; "We don't want to be silent. You're trying to smear"; "Stop confusing your mind. "But why are you shouting, why are you shouting?"; shouting - unclear"; "Wait. Don't bother me when I'm talking"; "Don't get too close to me. You're yelling too much into your ear.."; " Maybe you'll go outside and relax a little? It's impossible.."; " Second, but can I speak without interruption? We let you talk. (Talking Together)"; "Arbitrator, I ask you to silence him").
- The Applicant refers her arguments to the arbitrator's statement, which was made in the hearing of September 29, 2024 to Respondent No. 2 against Adv. Nakar, the Applicant's counsel in the arbitration, "Talk to me, why are you answering... It doesn't exist." However, reading the transcript in its entirety, it is easy to get an impression of the atmosphere that prevailed during the testimony of respondent No. 2, when on two pages prior to the alleged statement, the arbitrator said to respondent No. 2: "Maybe you'll go outside and relax a little? You can't...")p. 426, line 18). In addition, it is appropriate to bring the words that were said before the arbitrator for the purpose of understanding their context, as attesting to a kind of "quarrel" between the Applicant's counsel in the arbitration proceeding and Respondent 2, and were said by the arbitrator in order to continue the discussion and calm the situation:
"Eliav (Respondent 2): They came. They submitted it, it's part of the statement of claim, they wrote it explicitly.