14/05/2018

Arbitral appointments: broadening horizons or getting into deep water?

Five questions for London arbitration following the Court of Appeal’s decision in Halliburton v Chubb

The recent decision in Halliburton v Chubb is of great interest for its treatment of an application to remove an arbitrator under s 24 of the Arbitration Act 1996, in the common situation where the same arbitrator is appointed in overlapping references with only one common party, on the basis this gave rise to justifiable doubts about the arbitrator’s impartiality.

The case has the potential to become the leading authority on an arbitrator’s duty of disclosure. The result, at both first instance and in the Court of Appeal, was that the application to remove the arbitrator failed.

In this article we identify and address five broader inter-connected questions which the decision raises for London arbitration:

1. Does the Arbitration Act 1996 adequately cater for concerns that can arise when the same arbitrator is appointed in overlapping references?
2. Does the decision only deepen the dilemma for arbitrators ‘caught between a rock and a hard place’ when it comes to disclosure of appointments?
3. Is there a limit on the number of appointments that may be accepted by an arbitrator before there is an appearance of bias?
4. Is English law in this area itself infected with “unconscious bias”?
5. Does the case reflect a divide between English law and good practice in international arbitration?

Read the full report