In the case of A & 3 ORS v (1) B (2) X [2011] EWHC 2345 (Comm), an application was made under s.24(1)(a) of the Arbitration Act 1996 (the Act) to remove a sole arbitrator and to challenge a partial award for serious irregularity under s.68(1) of the Act.

Section 24 concerns the removal of an arbitrator for apparent bias.  This test asks whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.  Three aspects of the test were emphasised: firstly, it is an objective one; secondly, it assumes that the observer is in possession of all the facts which bear on the question whether there was a real possibility that the arbitrator was biased; and thirdly, the observer is expected to be aware of the way in which the legal profession in this country operates in practice.

It was held that such an observer would not consider that, merely because the arbitrator acted as counsel for one of the firms of solicitors acting in the arbitration, whether in the past or simultaneously with the arbitration, there was a real possibility of apparent bias.

The arbitrator's failure to mention his instruction by one of the firms of solicitors on an unrelated matter was inadvertent.  The late disclosure of this fact was not a serious irregularity which caused substantial injustice to the claimants within the meaning of s.68 of the Act, primarily because the authorities on s.68 make it clear that to succeed in setting aside an award under this section, a high threshold must be satisfied.  The section is intended to be available only in extreme cases, where the tribunal has gone so wrong that justice calls out for it to be corrected.