A Recent Decision From The High Court Of England And Wales: Confidentiality Of Arbitration v Public Interest

Introduction

The essentiality of all arbitrators being and remaining independent and impartial in the course of arbitral proceedings was previously highlighted in the context of the LCIA challenge decisions[1]. Another important feature of arbitration is also the confidentiality of the proceedings. These two issues became the subject of two different disputes which are analyzed below.

In a recent case[2], the High Court of England and Wales allowed the Chartered Institute of Arbitrators ("CIArb") to access certain documents to be used in disciplinary proceedings initiated against B (the first Respondent), an arbitrator, and for declarations concerning the use of those documents.

Background

Following the initiation of arbitral proceedings that arose out of a contract between C and D, D applied to the CIArb for the appointment of an arbitrator. Although C's counsel objected and proposed an alternative person, the appointment of B, a fellow of the CIArb, was confirmed.

Later on, C's counsel requested further information concerning the nature and extent of the professional relationship between B and D. There were further correspondence between the parties and eventually B called an arbitral hearing to determine whether the arbitral tribunal was "properly constituted". B, in his decision, confirmed that the tribunal was properly constituted, and that he had no conflict of interest. Yet, C's counsel requested B to recuse himself, and then applied to the court pursuant section 24(1)(a) of the Arbitration Act 1996 for the removal of B.

Section 24 Application

The application for the removal of B was based on the grounds that there were circumstances that gave rise to justifiable doubt as to B's impartiality.

On 17 February 2016, Hamblen J., in his judgment[3], concluded that the grounds for removal were made out in that they raised the real possibility of apparent bias. Upon this judgment, B resigned.

After B's resignation, and following a complaint from a third party, CIArb determined that disciplinary charges should be laid against B that included six charges against B, and he was referred to a disciplinary tribunal. CIArb then made two applications to the court:

The first application relates to an order under CPR 5.4 C (2)[4] to obtain copies of the statements of case, witness statements, including exhibits and written submissions and skeleton arguments (together the "Documents"), from the court records in the proceedings of the Section 24...