Arbitrator Bias: The English Commercial Court Offers Further Guidance On Disqualification Of Arbitrators

• Published date: 14 March 2024
• Law Firm: K&L Gates
• Author: Andrew D. Connelly and Ian Meredith

The leading English authority on arbitrator impartiality is the case of Halliburton Co v Chubb Bermuda Insurance Ltd [2021] AC 1083, a well-known case in which K&L Gates acted for Halliburton. Halliburton v Chubb clarified how apparent bias will be assessed by the courts and set an arguably high bar for arbitrator removal. The Supreme Court confirmed that the relevant test for arbitrator bias was objective and involved determining whether a fair-minded and informed observer would conclude that there was a real possibility of bias. So how is this applied in practice?

In the recent case of H1 & Anor v W & Ors [2024] EWHC 382 (Comm), the English Commercial Court removed a sole arbitrator under section 24 of the Arbitration Act 1996 due to justifiable doubts about his impartiality and a real possibility of bias, offering further guidance on the disqualification on arbitrators.

In Halliburton, the Supreme Court set out a number of relevant factors that should be taken into account when assessing potential arbitrator bias, some of which were helpfully summarised by Mr. Justice Calver in H1 v W, namely:

• The private and confidential nature of arbitration and limited discovery means there is a premium on frank disclosure.
• An arbitrator is not subject to appeals on issues of fact nor often on issues of law in the same way that a judge may be.
• There is a difference between a judge, as a holder of public office funded by taxation, and an arbitrator who has a financial interest in obtaining income from...