I am soon to embark upon Lesson Number 7 which will involve Arbitration jurisdiction. Last week we addressed procedure and procedural orders. Having acted as a Mediator for many years, I was struck by the very different approach to the process. The Arbitrator really is tasked with moving the parties along in a swift manner; after all the goal of the parties at first instance was likely moving the matter to resolution in a timely way and not being prevented from doing so through court delay. In that regard, the Arbitrator is tasked with getting the parties to agree to process and orders and to work to swift deadlines and to turnaround interim awards in a very efficient and timely way so as to get to the ultimate hearing and resolve the dispute. The resources available to the participants of the TCAS course are vast and robust. I enjoyed poking about William Horton’s website which is full of useful resources. What a gift to the profession! If you are new to Arbitration and even if you are not, you must look at the excellent articles on Mr. Horton’s website: add url to website As promised-a few highlights from another Arbitration court decision:
Halliburton Company v Chubb Bermuda Insurance Ltd & Ors, [2018] EWCA Civ 817, on impartiality, bias and fairness.
In Halliburton Company v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817, the Court of Appeal addressed important principles concerning impartiality and disclosure in commercial arbitration under the Arbitration Act 1996.
The Court reaffirmed that under sections 1, 24, and 33 of the Act, arbitrators are under a continuing duty to act, “fairly and impartially as between the parties” and may be removed where “circumstances exist that give rise to justifiable doubts as to impartiality.” The applicable test, drawn from Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, is whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.” This is an objective standard, requiring a balanced and informed assessment rather than the subjective view of the party alleging bias.
The Court clarified that the mere acceptance of multiple appointments in related or overlapping arbitrations involving one common party does not, without more, give rise to an appearance of bias. Citing AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2005] 1 WLR 723, the Court emphasised that arbitrators, like judges, are presumed to act with integrity and independence, deciding each case solely on the evidence before them. The “something more” required to establish apparent bias must be “something of substance,” such as conduct suggesting partiality, reliance on extraneous information, or improper communication. The Court recognised that while overlapping references may give rise to legitimate concerns regarding “inside knowledge,” these concerns do not, in themselves, justify an inference of bias unless accompanied by other significant factors.
Regarding disclosure, the Court held that, as a matter of good practice and law, arbitrators should disclose any facts or circumstances known to them which “would or might” lead the fair-minded and informed observer to conclude that there was a real possibility of bias. Failure to make such disclosure, though a relevant consideration, does not automatically establish apparent bias unless accompanied by additional substantive factors suggesting partiality. Non-disclosure “colours the thinking of the observer,” but an honest oversight is insufficient to justify removal. Ultimately, the Court concluded that while the arbitrator in question, “M,” ought to have disclosed his subsequent appointments involving Chubb as a matter of good practice, his non-disclosure and continued participation did not give rise to a real possibility of bias. The Court thus affirmed that impartiality under English arbitration law is grounded in both the objective perception of fairness and the practical expectation that arbitrators will disclose potentially relevant connections to preserve confidence in the arbitral process.
