Test for potential bias for removal of an arbitrator - summary of CA decision

HALLIBURTON CO V CHUBB BERMUDA INSURANCE LTD AND OTHERS [2018] EWCA Civ 817, Court of Appeal -  19 April 2018

In a recent CA decision the English court, when considering when an arbitrator should make disclosure of facts which may give rise to justifiable doubts as to his/her impartiality, made the following 8 helpful findings and clarifications:

1. The risk of unconscious bias does not affect the relevant legal test for apparent bias. 

2. The mere fact that an arbitrator accepts appointments in multiple references concerning the same or overlapping subject matter with only one common party does not of itself give rise to an appearance of bias. 

3. The fact that such appointments may be accepted is not determinative of whether disclosure should be given before accepting such appointments. 

4. Under the common law, arbitrators should disclose facts or circumstances which would or might provide the basis for a reasonable apprehension of lack of impartiality but an arbitrator can only disclose what he/she knows and there is no duty of inquiry. 

5. Non-disclosure is only a factor to be taken into account in considering the issue of apparent bias. 

6. The question at the time that disclosure ought to have been contemplated is not whether the fact would have provided the basis for a reasonable apprehension of lack of impartiality, but whether it might have provided such a basis. 

7. An innocent oversight in failing to disclose might not be something for which the arbitrator can be blamed, but it cannot excuse non-disclosure of a fact that ought properly to have been disclosed. 

8. If an arbitrator ought to have made a disclosure but fails to do so, even by way of innocent oversight then the question is: "whether, at the time of the hearing to remove, the non-disclosure taken together with any other relevant factors would have led the fair-minded and informed observer, having considered the facts, to conclude that there was in fact a real possibility that the arbitrator was biased"?