CAN A NON-INDEPENDENT ARBITRATOR ACTS INDEPENDENTLY?
Postscript: An interesting paper shed some lights on the subject of ‘independence’, a rarely explore subject in the field of arbitration. It states, the requirements for impartiality has been enshrined in ICC-Rules, LCIA-Rules, UNCITRAL-Rules, UNCITRAL-Model Law, AAA-Construction Industry Arb. Rules, IBA-Rules on Ethic, IBA-Guidelines on Conflicts, ICSID-Rules and also the Malaysia Arbitration Act 2005. Interestingly the UK arbitration Act 1996 is silence on this provision of being, ‘independent’ and the question is why? Such omission is deliberate as in the ‘DAC Report’, ‘[Inclusion] of independence would give rise to endless arguments […] almost any connection (however remote) has been put forward to challenge the ‘independence’’. This shows that the term, independent and impartial ought to be distinguished. The dictionary prescribed, independent as, ‘free from outside control’. Challenge on the notion of ‘independence’ has been diverse, i.e. conflict of counsel and the nominated arbitrator, in a personal injury case where the recorder is in conflict with both counsels and the classic case of Porter v Magill.
 Stuart Allen, Barristers’ Chambers in England and Wales: The Role of Impartiality and Independence in International Arbitration, LLM,RGU
 S.14(1) Malaysian Arbitration Act 2005 (AA)
 Julian, Loukas, Stefan, Comparative Commercial International Arbitration (1st ed. Kluwere Law Arbitration 2003),p.255-273
 Lord Justice Saville, ‘DAC on Arbitration Law 1996 Report on Arbitration Bill’ 13(3)102
 Oxford Dictionary (3rd.ed.Oxford University Press 2018)
 Brescia Calcio SpA v West Ham FC Plc  ISLR, SLR40; ICC Case No.1653/GZ
 Smith v Kvaerner Cementation Foundation  EWCA Civ 242
  UKHL 67
Neutrality, independence and impartiality, the three key criteria of dispute resolutions be it arbitration, adjudication, determination or mediation. Various attempt has been made to clarify the positions of these criteria, but the notion of independence herewith is given a different perspective as to: what is the meaning of independence? Can a person who is not independent acts independently? If so, can a decision by an arbitrator who is not independent be challenged?
Definition given to ‘independence’ are generally referred to private, professional or business-related relationships of the arbitrator to the parties or counsels involved in the arbitration; “likely to give rise to justifiable doubts”; Whereas an independent arbitrator is one who does not have any type of personal and/or employment relationship, needed to ensure that justice is seen to be done; Independence refers to objective and external manifestation of the relationship between the parties, counsels and co-arbitrators; and shall not only be independent but he shall also be perceived as independent by third parties.
The standard of independence however, is subject to the institution’s rules or the seat of the arbitration but generally, common law jurisdiction will follow the English position of “the real danger of bias” test which are very specific. Thus, the question of independence and bias boils down to, can a person who is not independent acts independently?
Who is a person deemed not independent? In this context, can a person under an employment of another person be deemed independent? Unlikely so, because this person under employment is constantly under the influence of the employer, via the employment agreement, bound in some jurisdiction under the Employment Act. There is no obligation for the employer to make any disclosure to its employee, thus how can an employee in this instance, and in return, has sufficient knowledge to make any disclosure, while acting as an arbitrator without risking the “real danger of bias” implication? Even if the employer has consented, it will be very subjective through a third-party perspective that such an employed arbitrator can discharged its duty independently.
If so, can a decision by an arbitrator who is not independent be challenged? The law holds that a person who is approached in connection with that person’s possible appointment as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to that person’s impartiality or independence. An arbitrator may be challenged only if, the circumstances give rise to justifiable doubts as to that arbitrator’s impartiality or independence.
In summary, it is important for institution administered arbitration, to make sure not only a declaration is made that the potential arbitrator could discharged its duty independently, it must also confirm that the arbitrator is independent, unlikely to be under an employment of any private entities, as the rule under the “real danger of bias” test is also held in Malaysia.
 <https://www.ciarb.org/resources/features/independence-and-impartiality-of-arbitrators/>: Bruno Manzanares Bastida, ‘The Independence and Impartiality of Arbitrators in International Commercial Arbitration from a Theoretical and Practical Perspective’ (2007) 6 Revist@ e-mercatoria 1, 3 < https://ssrn.com/abstract=1491528> accessed 5 April 2012
 Model Law generally follows the IBA Guidelines: Nathalie Bernasconi-Osterwalder, Lise Johnson and Fiona Marshall, ‘Arbitrator Independence and Impartiality: Examining the Dual Role of arbitrator and counsel’ (2011) International Institute for Sustainable Development (IISD) 12 < http://www.iisd.org/pdf/2011/dci_2010_arbitrator_independence.pdf > accessed 5 April 2018.
 Malintoppi, L., Part III Procedural Issues, Chapter 20 - Independence, Impartiality, and Duty of Disclosure of Arbitrators, in Muchlinski, P. T., Ortino, F. and Schreuer, Ch. (eds.), The Oxford Handbook of International Investment Law, 2008, p. 807
 < https://jusmundi.com/en/document/wiki/en-arbitrators-impartiality-and-independence>
 <http://www.davidyek.com/adr/lessons-on-arbitrals-impartiality-halliburton-v-chubb>: Halliburton v ChubbUKSC48: the ‘real possibility of apparent bias’ by Lord Hodge
 S.14(1) Malaysian Arbitration Act 2005 (AA)
 Low Koh Hwa @ Low Kok Hwa (practising as sole Chartered Architect at Low & Associates) v Persatuan Kanak-Kanak Spastik Selangor & Wilayah Persekutuan and another case  MLJU 430
Postscript: An update that the Halliburton Test is also applied to CIPAA’s Adjudicators test of ‘apparent bias’ in a setting aside attempt, where the court held that the first rule of natural justice “overlaps with” but is “distinct from the Duty to be Impartial”, to include, the “real danger of bias” test (“Real Danger Test”) and the “real possibility of bias” test (“Real Possibility Test”).
 Rosha Dynamic Sdn Bhd v Mohd Salehhodin bin Sabiyee & Ors and other cases  MLJU 1222
 S 15 of the Construction Industry Payment and Adjudication Act 2012 (CIPAA)
 “fair-minded and informed observer”
 Bar Council v Tun Dato Seri Arifin bin Zakaria & Ors  4 MLJ 773
LESSONS ON ARBITRAL’S IMPARTIALITY – HALLIBURTON v CHUBB
Having now a local case employing Halliburton v Chubb on arbitrator bias and duty of disclosure, I had revamped my article that I wrote earlier this year in January, 19th.
In Halliburton v Chubb, the legal-test that applies to duty of disclosure, even if “real-possibility of bias” not established on facts, duty of disclosure arises as-if it might "reasonably" give-rise to doubt; assessment of “possibility of bias” following disclosure, should be applied through the perspective of "fair-minded and informed-observer", in "realities of international-arbitration" context and "custom and practice in the relevant-field of arbitration", i.e. provided no-breach of confidentiality, yet to provide as much information that if you can't disclose, otherwise arbitrator “must-resign”; and failure to disclose is that, observer can assess whether there is a “real possibility of bias”, be made at hearing-date to “remove the arbitrator”, and not at the arbitrator's acceptance-date of subsequent appointment.
In Low Koh Hwa @ Low Kok Hwa (practising as sole Chartered Architect at Low & Associates) v Persatuan Kanak-Kanak Spastik Selangor & Wilayah Persekutuan and another case  MLJU 430, the court set aside an award on the basis of arbitrator apparent bias, in conflict with public-policy, breaching the rules of natural-justice. The court holds, the arbitrator must, statutorily, make full and timeous disclosure, which are likely to give rise to justifiable doubts as to the arbitrator's impartiality or independence, which would enable a 'fair-minded and informed observer' to decide objectively on whether there are justifiable doubts on the arbitrator's impartiality and/or independence; estoppel cannot be relied if the applicant fails within the time-bar objection when an arbitrator failed to give ‘full and timeous’ disclosure, statutorily imposed; and impacted the award as the arbitrator "would have reached a different decision if not for the [failure to make full and timeous disclosure]"
Concluding, the Malaysian case did not concern multiple appointment as per Halliburton. It is significant that the applied principles determine the extent of an arbitrator's duty of disclosure and set threshold for setting aside an award for apparent bias. The court acknowledged the difficulty in proving ‘apparent bias’ yet it sends signal to arbitral institution not to only limit their panel of arbitrators to a small significant number, i.e. less than 20, when the disputing parties in the construction industries are limited.
 Porter v Magill 1UKHL67; R v Gough AC646: bias is met as long as the court is satisfied that there is a sufficient degree of possibility of bias.
 Davidson v Scottish Ministers(No 2)UKHL34:a legal duty of disclosure in s.33,1996Act
 R v Sussex 1KB256 at 259:justice should not only be done, but be seen to be done; Findlay v UK 24EHRR221:tribunal must be subjectively free from personal prejudice, be impartial from an objective viewpoint; W v M EWHC422(Comm)
 R v Gough AC646:real likelihood/danger of bias test; Re Medicaments(No.2) 1WLR700
 Helow v Secretary of State Home-DepartmentUKHL62:observer not-judge on any-point before acquiring full-understanding of both sides.
 Porter v MagillUKHL67:“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”; Johnson v Johnson (2000)201CLR488:fair-minded and informed-observer is “neither complacent nor unduly sensitive or suspicious”.
 A v B EWHC 2345(Comm); ASM Shipping v TTMIEWHC2238(Comm):requirement in English law that all arbitrators, appointed, comply with the same high-standards of impartiality, appears to be accepted as the legal-norm internationally.
 Dolling-Baker v Merrett1WLR1205(CA); Ali Shipping v Shipyard Trogir1WLR314; Development of City of Moscow v Bankers TrustEWCACiv314:English-seated arbitrations are both private and confidential.
 Halliburton v ChubbUKSC48:arbitrator’s obligation of confidentiality which prevent disclosure, is an unsettle law and case-sensitive.
 AWG v Alexander Fraser EWHC2786(Ch); TM v. Ghana PCACaseNo.2003-03
 PAO Tatneft v UkraineEWHC3740(Ch):failure of disclosure may then be a factor to establish justifiable doubts as to the arbitrator’s impartiality.
 S.37 Malaysian Arbitration Act 2005 (MAA 2005): award may be set aside […] if - (i) a party […] was under any incapacity
 S.14 MAA 2005
 Halliburton v ChubbUKSC48: the ‘real possibility of apparent bias’ by Lord Hodge
 S.15(1) MAA 2005
 S.14(1) and (2) MAA 2005
 Reported in PAM annual report 2020/2021, p.40: 13 nos. as per Dec 2020
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