LESSONS ON ARBITRAL’S IMPARTIALITY – HALLIBURTON v CHUBB

LESSONS ON ARBITRAL’S IMPARTIALITY – HALLIBURTON v CHUBB

Legal-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.

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[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.