Lloyd's Maritime and Commercial Law Quarterly
British Arbitration Law
Karen Maxwell *
ENGLISH CASES
20. A v B1
Removal of arbitrator—impartiality—serious irregularity
Disputes arose under a sale and purchase agreement and were referred to LCIA arbitration. The parties’ solicitors agreed to appoint a QC as sole arbitrator, and he signed a statement of independence, as required by the LCIA Arbitration Rules, confirming his impartiality and independence. The QC had previously been instructed by the respondents’ solicitors in connection with unrelated litigation, which was settled. However, the settlement failed and the litigation became active before the QC had given his award. In early December 2010, the QC informed the parties of his involvement in the litigation but indicated that his independence and impartiality were not affected. On 20 December the LCIA produced the award to the parties, and the next day the claimant applied to the LCIA Court to remove the QC as arbitrator. That challenge was rejected and the claimant commenced proceedings in the Commercial Court seeking an order removing the QC as arbitrator pursuant to the Arbitration Act 1996, s.24 and challenging the award for serious irregularity pursuant to s.68(2)(a).
Decision: Applications dismissed.
Held: On the basis of the facts and material before the court, a fair-minded and informed observer would conclude that there was no real possibility of apparent or unconscious bias. Such an observer was presumed to know how the legal profession works, and would not consider that the circumstances gave rise to any real possibility of bias. The suggestion that the QC might have particular confidence in the respondent’s solicitors because he was acting for them is rejected, and there was no evidence to support the suggestion that the QC might have inadvertently disclosed matters relating to the arbitration to the solicitors. Furthermore, although the QC’s involvement in the litigation was not disclosed until late in the day, this was an inadvertent failure, and the delay had no bearing on the question whether there was any apparent or unconscious bias. Nor did it satisfy the high threshold imposed by s.68 of the 1996 Act: late disclosure of a matter that did not amount to apparent bias was “ a very long way indeed” from satisfying the requirements of that provision.
Comment: The judgment of Flaux J considers the relevance of the IBA Guidelines on Conflicts of Interest in International Arbitration to applications based on allegations of
* Head of Arbitration, Practical Law Company: www.practicallaw.com.
1. [2011] EWHC 2345 (Comm) (Flaux J).
BRITISH ARBITRATION LAW
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