We need to talk about Ken (and about Michael)

In Halliburton Company v Chubb Bermuda Insurance Ltd, the Supreme Court unanimously dismissed Halliburton’s appeal from the Court of Appeal decision that had upheld the refusal to remove the arbitrator.  In the first arbitration case to apply Halliburton, the Commercial Court has rejected an attempt to disqualify an arbitrator in Newcastle United Football Company Limited v The Football Association Premier League Limited.

If these cases represent the application of the law of England and Wales on conflicts in arbitration, it is in a sorry state.  In several respects the results are deeply unsatisfactory.  Distinguished arbitrators have been found not to have complied with disclosure duties but the courts have declined to interfere.  There are four specific areas where the state of the law is unsatisfactory.  Firstly, the duty (if any) on an arbitrator of enquiry before disclosure is unclear (“enquiry”); secondly, the lack of presumption of apparent bias from a breach of disclosure obligations is troubling (“presumption”); thirdly, we are dangerously close to admitting and relying upon the reputation of the challenged arbitrator or what the challenged arbitrator says about his or her state of mind without affording any opportunity to challenge that (“reputation”); and finally when is the analysis to be performed (“date”).

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