LESSONS ON ARBITRAL’S IMPARTIALITY – HALLIBURTON v CHUBBLegal-test that applies to duty of disclosure[1], even if “real-possibility of bias”[2] not established on facts, duty of disclosure[3] arises as-if it might "reasonably" give-rise to doubt;[4] assessment of “possibility of bias”[5] following disclosure, should be applied through the perspective of "fair-minded[6] and informed-observer"[7], in "realities of international-arbitration" context[8] and "custom and practice in the relevant-field of arbitration", i.e. provided no-breach of confidentiality[9], yet to provide as much information that if you can't disclose[10], otherwise arbitrator “must-resign”[11]; and failure to disclose[12] 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.
--------------------------------------------------- [1] S.24(1)(a)1996Act [2] Porter v Magill[2001] 1UKHL67; R v Gough[1993] AC646: bias is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. [3] Davidson v Scottish Ministers(No 2)[2004]UKHL34:a legal duty of disclosure in s.33,1996Act [4] R v Sussex[1924] 1KB256 at 259:justice should not only be done, but be seen to be done; Findlay v UK[1997] 24EHRR221:tribunal must be subjectively free from personal prejudice, be impartial from an objective viewpoint; W v M[2016] EWHC422(Comm); [5] R v Gough[1993] AC646:real likelihood/danger of bias test; Re Medicaments(No.2)[2001] 1WLR700 [6] Helow v Secretary of State Home-Department[2008]UKHL62:observer not-judge on any-point before acquiring full-understanding of both sides. [7] Porter v Magill[2001]UKHL67:“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”. [8] A v B [2011]EWHC 2345(Comm); ASM Shipping v TTMI[2005]EWHC2238(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. [9] Dolling-Baker v Merrett[1990]1WLR1205(CA); Ali Shipping v Shipyard Trogir[1999]1WLR314; Development of City of Moscow v Bankers Trust[2004]EWCACiv314:English-seated arbitrations are both private and confidential. [10] Halliburton v Chubb[2020]UKSC48:arbitrator’s obligation of confidentiality which prevent disclosure, is an unsettle law and case-sensitive. [11] AWG v Alexander Fraser[2005] EWHC2786(Ch); TM v. Ghana[2003] PCACaseNo.2003-03 [12] PAO Tatneft v Ukraine[2019]EWHC3740(Ch):failure of disclosure may then be a factor to establish justifiable doubts as to the arbitrator’s impartiality.
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DYA+CAuthorDYA+C is set up by Ar. DAVID YEK TAK WAI to undertake resolution of commercial disputes through ARBITRATION and ADJUDICATION, specializing in CONSTRUCTION PAYMENT DISPUTES. This is an educational blog. We do not guarantee, confirm nor warrant the accuracy of the information and facts stated therein. Read at your own 'risk'.
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