Halliburton V Chubb: U.K. Supreme Court Rules On Arbitrator Bias

• Published date: 04 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: WilmerHale
• Author: Mr Charlie Caher and Joe Rich

On 27 November 2020, the U.K. Supreme Court in Halliburton Company v Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd) [2020] UKSC 48 ruled on the approach under English law to determining whether an arbitrator's failure to make disclosure of appointments in multiple arbitrations with overlapping subject matter and only one common party gave rise to justifiable doubts as to his impartiality such that he should be removed (judgment available here).

In an expansive judgment which sought to clarify the state of English law on the topic, the Court held that:

• To determine whether there is an appearance of bias such that removal of an arbitrator is required, English law will apply the objective test of whether an informed, fair-minded observer would conclude that there is a real possibility of bias.
• While the obligation of impartiality applies equally under English law to party-appointed arbitrators and tribunal chairpersons, an informed, fair-minded observer will take into account (among other things) the debate in international arbitration as to the role of party-appointed arbitrators (including the different approaches taken in other jurisdictions to that role) and the fact that parties may in certain circumstances consequently place a heavier responsibility on the chair of the tribunal to be impartial.
• There may be circumstances in which the acceptance of appointments in multiple references concerning the same or overlapping subject matter with only one common party might reasonably cause the objective observer to conclude that there is a real possibility of bias. This will depend on the facts of the particular case and especially the custom and practice in the relevant field of arbitration.
• Unless the parties to an arbitration agree...