Unconscious bias

An arbitrator may be removed under the Arbitration Act 1996 if there are justifiable doubts as to his impartiality. In A and Ors v B and Anr [2011] EWHC 2345 (Comm), Flaux J rejected the suggestion that there were justifiable doubts as to the impartiality of a barrister sitting as an arbitrator who was, at the same time, acting for the solicitors of one of the parties in entirely unrelated legal proceedings.

A v B: the facts

The parties had entered into a share sale and purchase agreement in 2006. Disputes arose. B alleged breaches by A and commenced arbitration proceedings against A on 31 March 2009 under the Rules of the London Court of International Arbitration. The parties’ solicitors agreed on X, a QC with experience of such matters, as sole arbitrator. On 8 May 2009 X signed a Statement of Independence in accordance with LCIA Rules, confirming that he was ‘impartial and independent of each of the parties, and I intend to remain so, and there are no circumstances known to me likely to give rise to any justified doubts as to my impartiality or independence’. X had in the past received instructions from both firms of solicitors, from A’s solicitors in 2005 and from B’s solicitors in 1999 and 2004. The 2004 instruction involved a dispute which was completely unconnected to the present arbitration. The 2004 instruction had led to proceedings in 2006 but they were settled and stayed in 2008 and the stay had remained in place by the time of the arbitration; there was no reason for X to believe that the proceedings would be revived.