Judge finds allegation of bias against arbitrator is weak

The claimant discontinued two arbitration claims in which it had challenged (pursuant to section 68 of the Arbitration Act 1996) two awards against it on the ground of bias on the part of the Chair of the tribunal. The issue in this case was who should pay the costs for the discontinued claims and, as part of his decision, the judge assessed the question of bias.

It was accepted that the same legal principles applied as for an application to remove an arbitrator. Here, the claimant had complained about the Chair's connections with the QC acting for the defendant. At the time of the arbitration, the Chair was sitting as a co-arbitrator with the QC in at least 2 other arbitrations (and had done so in the past on one other arbitration). The Chair had also appointed that QC to act as adviser to the Board of an international arbitration centre, of which the Chair was chairman. Reliance was also placed on the Chair's connections with the defendant's solicitor: they had worked together at an international law firm between 2005 and 2008 and were said to have a "warm and friendly relationship".

Blair J concluded that these allegations of bias were "very weak". There was no connection between this arbitration and the other arbitrations in which the Chair and QC had acted. The IBA's Guidelines list this type of issue under its Green List (ie there is no duty to disclose it). Although Blair J noted that the Guidelines are "in no sense binding" on the English court, nevertheless he said "it is a useful indication of what is accepted as international best practice". The fact that the Chair and defendant's QC had served, or serve, as co-arbitrators in unconnected arbitrations was very unlikely, without more, to give rise to apparent bias or to require disclosure.

Nor did the fact the Chair had worked together more than 3 years ago amount to apparent bias or a need to disclose. The relationship was a long way from the "close personal relationship" referred to in the Orange List of the IBA Guidelines.

Advancing these allegations of bias under section 68 of the Arbitration Act 1996 might well in itself justify the court awarding indemnity costs.

Finally, the judge was not required to decide whether the claimant had lost the right to object because it had continued to participate in the arbitration (prior caselaw having held that a party cannot take the position that if the award is in its favour it will drop its objection, but make it in the event that the award goes against it). However, the claimant had sought to argue that there had been no waiver because its investigations had been continuing.