You might not like an arbitrator's order or an award, but you cannot seek to remove the arbitrator unless their actions have caused or might lead to substantial injustice.

In T v. V and others [2017] EWHC 565 (Comm), the claimant referred a partnership dispute to arbitration. After becoming seriously ill and undergoing surgery, the claimant later failed to disclose documents in the arbitration proceedings despite the arbitrator granting various extensions of time for service. Eventually the arbitrator refused further extensions and, having reviewed the circumstances (including expert views on the effect of the claimant's ill health on his ability to take part in the proceedings), ordered the claimant to serve documents on which he wanted to rely, otherwise he would not be allowed to do so in future. Unhappy with that decision, the claimant applied to the court for an order to remove the arbitrator under section 24 of the Arbitration Act 1996 (AA96).

Substantial injustice must be established to remove an arbitrator for alleged improper procedural conduct

Mr Justice Popplewell reviewed the legal principles applicable when deciding whether an arbitrator has caused substantial injustice sufficient to justify their removal. (Extracts from paragraph 94 of the judgment are included in the following key points.)

  • Section 33(1)(b) of the AA96 seeks to ensure that an arbitrator adopts procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
  • An arbitrator must act fairly and impartially between the parties, (section 33 of the AA96).
  • If the arbitrator has adopted an appropriate procedure, the court will not substitute its own view as to what decision it would have reached in all the circumstances  unless there is apparent bias.
  • The test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the arbitrator was biased.
  • The fair-minded observer is gender neutral, is not unduly sensitive or suspicious, reserves judgment on every point until he or she has fully understood both sides of the argument, is not complacent and is aware that judges and other tribunals have their weaknesses. The informed observer is informed on all matters which are relevant to put the matter into its overall social, political or geographical context. These include the local legal framework including the law and practice governing the arbitral process and the practices of those involved as parties, lawyers and arbitrators.
  • This test is an objective one. The "fair-minded observer" is not to be confused with the person who has brought the complaint and the test ensures that there is a measure of detachment.
  • All factors which are said to give rise to the possibility of apparent bias must be considered not merely individually but cumulatively.
  • It is up to the applicant to prove that the arbitrator's actions caused substantial injustice.

The arbitrator had acted fairly and impartially in the circumstances

The court rejected the claimant's application and found that the arbitrator had given careful consideration to her refusal to order further extensions. Her decision was reasonable in the circumstances, she had dealt with the extensions fairly and impartially, in a measured way and with diligence, and there was no substantial injustice.

The judge (like the arbitrator) concluded that the claimant had been well enough to participate in the limited way required. He highlighted the claimant's solicitors' apparently misguided belief that the requirement to serve documents on which the claimant relied was onerous – like that of standard disclosure under the Civil Procedure Rules (which, in this arbitration, it was not). In fact, little input was needed from the claimant for his solicitors to effect the required disclosure. The claimant had had reasonable opportunity to serve the documents and could have served at least some of the documents by the due date if not all. Further, the claimant had made no attempt to prove that the arbitrator's decision had caused substantial injustice.

In concluding that the arbitrator had acted reasonably in the circumstances, the judge stated:

"It is clear from the correspondence which I have recited, and the other correspondence which I have read but not set out in this judgment, that the arbitrator took great care over her decision-making. She read and reviewed all the relevant material. She granted a number of extensions and refused others, in each case by reference to the particular material which fell to be considered. She applied herself to it with diligence. She was not, as the history shows, unsympathetic to the medical difficulties which were placing constraints on the [claimant] and his legal team but she rightly stated that she had to have regard to the interests of both parties to the arbitration …"

The arbitrator had to be mindful of the imperative of speedy and efficient finality in arbitration (under section 33 of the AA96). There had already been considerable delay in the arbitration and both parties had a duty to progress the proceedings not least because "the longer matters are delayed the more memories fade". The claimant's request for further extensions would have jeopardised the planned hearing date. Further, the claimant, or his solicitors, were not seeking to be wholly cooperative in trying to resolve matters as speedily and efficiently as possible.

Had the arbitrator's decision been unreasonable and outside the range of reasonable decisions, the court might have intervened – but only if the claimant had established substantial injustice backed up with evidence.