Adjudicators, arbitrators and judges must be impartial - and appear impartial, but how do you tell if there is apparent, rather than actual, bias? In A v B and X Leading Counsel who had been appointed arbitrator had not realised that, after his appointment, he had resumed acting in an entirely separate case in which the solicitors instructing him were also solicitors for a party in the arbitration. Was that apparent bias so that the arbitrator could be removed?
The test, according to the courts, is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. In this case, the judge emphasised three aspects of the test. It is objective and not dependent on the characteristics of the parties. It also assumes that that the impartial observer is “ fair-minded” and “informed”, i.e. in possession of all the facts relevant to the question whether there was a real possibility that the arbitrator was biased. The third, and particularly relevant, aspect, was that although the observer is not to be regarded as a lawyer, they are expected to be aware of the way in which the legal profession in this country operates.
On the facts before the court, the judge decided that the fair-minded and informed observer would conclude that there was no real possibility of apparent or unconscious bias.
