Lloyd's Maritime and Commercial Law Quarterly
English arbitration law 2000
Clare Ambrose *
This is a review of the principal cases on the law of arbitration reported in 2000.
1. A.T. & T. Corp. v. Saudi Cable Co. 1
Removal of an arbitrator for bias and failure to disclose matters owing to lack of independence.
The case arose out of an ICC arbitration concerning a telecommunications project in Saudi Arabia. One of the three arbitrators, an eminent Canadian lawyer, Mr Yves Fortier, was a non-executive director of a competitor company of A.T. & T. This company had been a disappointed bidder in the project in issue. Under ICC arbitration rules any arbitrator is required before appointment to disclose any matters which might call into question his independence in the eyes of the parties. Due to a secretarial error the c.v. for Mr Fortier which had been submitted to A.T. & T. had omitted the directorship in question. An award was made against A.T. & T. and they applied to set it aside and remove Mr Fortier under the Arbitration Act 1950 on grounds of misconduct, namely (a) bias and (b) failure to disclose the directorship in breach of ICC arbitration rules. A.T. & T. had expressly disclaimed any allegation that Mr Fortier was consciously biased against them. Instead, their principal allegation was apparent or unconscious bias.
Decision (C.A.: Lord Woolf, M.R., Potter and May, L.JJ.):
The challenge was dismissed on both grounds. Longmore, J.’s first instance decision affirmed.
Held:
The same test for bias applies in arbitration (even an international arbitration) as in any publicly constituted court or tribunal. The test to be applied for unconscious bias is that set out by Lord Goff of Chieveley in R.
v. Gough,
2
namely that the court should ask itself whether, having regard to all relevant available evidence, there was “a real danger” of bias on the part of the person in question in the sense that he might unfairly regard one party with favour or disfavour. The court rejected an argument that the test of “reasonable apprehension” of bias should be adopted as being closer to that adopted by the European Court of Human Rights and other jurisdictions such as Scotland, Australia and South Africa. The court confirmed preference for use of the term “unconscious” rather than “apparent” bias. This is because it is not strictly concerned with the mere appearance of bias; instead, it will look at all the evidence, including matters which might not have been available to the observer at the time of the decision, to assess if there is a real danger that the arbitrator was unconsciously predisposed to one party.
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