Perceptions of Impartiality: Apparent Bias in Arbitration and Challenges to Awards

1. A century ago, Lord Hewart emphatically stated in R v Sussex Justices ex parte McCarty [1924] KB 256 that “… it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. Today, the phrase “justice must be seen to be done” has entrenched itself as a cornerstone of natural justice. Applied in the context of international arbitration, the adage strictly requires that an arbitrator be disinterested and unbiased in adjudicating a dispute.¹
2. A party’s right to choose an arbitrator is one of the most distinctive features of arbitration as a dispute resolution mechanism. While arbitration has increasingly entrenched itself as a preferred mode of dispute resolution method across various industries and jurisdictions,² and the pool of arbitrators has seemingly expanded in recent years, repeated appointments from a narrow pool of arbitrators for higher value and complex disputes continues to be a trend.³ For example, the ICC reported that 30% of its arbitrator confirmations / appointments in 2023 were repeat appointments.⁴ There has also been increasing scrutiny on the practice of “double hatting”, where an arbitrator also acts as counsel in different cases, resulting in arbitrators appearing as counsel before a tribunal comprising arbitrators whom they have sat with previously. This remains a concern, as repeated appointments (and similar issues such as double-hatting), coupled with allegations of inadequate disclosure, has been one of the reasons for challenges against awards premised on what a dissatisfied party perceives to be bias on the part of the arbitrator,⁵ violating the natural justice requirement that an adjudicator be disinterested and unbiased.
3. This article reviews recent landmark decisions issued by the courts in major arbitration seats England and Singapore which have refined the test on bias in the context of challenges to arbitrators and/or arbitral awards – particularly in the context of standards of disclosure. The article starts by analysing the similarities in the test adopted by both the Singapore and English courts before considering the differences in the way in which the test has been applied in various cases before the Singapore and English courts. The article then considers whether it is in fact appropriate to use the same test for bias for judges and arbitrators, given the differences between litigation and arbitration proceedings. This is particularly so, in light of the UK Supreme Court decision in Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48 (“Halliburton”), where the UK Supreme Court emphasised the importance of context in applying the apparent bias test. As discussed, the Singapore courts have subsequently referred to and agreed with the approach in Halliburton in the context of allegations of bias against arbitrators. The article concludes by considering the implications of these decisions for arbitration users and the way forward, including potential solutions that arbitration users can consider to minimise the risks of such challenges.

A. The applicable test for apparent bias in both England and Singapore

4. The English and Singapore courts both recognise the doctrines of actual bias and apparent bias and they are largely aligned on the applicable tests in addressing allegations of bias by a party.
5. At the outset, it is important to recognise the distinction between actual bias and apparent bias. Actual bias⁶ arises where an adjudicator is a party to the proceeding or has a financial or other interest in its outcome. In determining whether there is actual bias, the question is not whether the adjudicator has a link to a party to the proceeding, but whether the outcome of that cause could realistically affect the judge’s interest.⁷ As noted by the Singapore High Court in Chee Siok Chin and anor v AG [2006] SGHC 13 (at paragraph 9), proof of actual bias is often “very difficult” as “the law does not countenance the questioning of a judge about extraneous influences affecting his mind”.
6. On the other hand, apparent bias can arise where there is a perception of bias on the part of an adjudicator. As briefly explained below, since the decision of Re Shankar Alan s/o Anant Kulkarni [2007] 1 SLR(R) 85, the Singapore courts have applied a slightly different test from that used by the English courts, although the starting point in both jurisdictions is that an allegation of apparent bias is assessed from the perspective of a “fair-minded and informed observer”.

(1) England – ‘Real possibility’ test

7. In England, the initial ‘real danger’ test on apparent bias was set out in R v Gough [1993] UKHL 1 (“Gough”) and described in the following terms:

“…having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.”⁸

8. The House of Lords clarified that the test was to be ascertained from the perspective of the court, rather than from the perspective of a reasonable third person:

“I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time.”⁹

9. The test was subsequently reformulated in Porter v Magill [2001] UKHL 67 (“Porter”) as a ‘real possibility’ test, which would be ascertained from the point of view of a “fair-minded and informed observer”, and it was described in the following terms:

“The question 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.”¹⁰

10. In a later decision in Helow v Secretary of State for the Home Department [2008] UKHL 62 (“Helow”), the House of Lords further clarified that the “fair-minded and informed observer” must take a “balanced approach to any information she is given”, after she has “inform[ed] herself on all matters that are relevant.”¹¹
11. As explained in the following section, the UK Supreme Court decision of Halliburton has further clarified how the doctrine of apparent bias will be assessed by the English courts, particularly in the context of arbitration. Notably, the case addressed the specific issue of when an arbitrator should make disclosure of circumstances which may give rise to doubts as to his / her impartiality. Emphasising that “[i]mpartiality has always been a cardinal duty of a judge and an arbitrator”,¹² the UK Supreme Court noted that an arbitral tribunal’s duty to resolve disputes fairly and impartially is enshrined in Section 33 of the UK Arbitration Act 1996.¹³ In ascertaining whether there is apparent bias, the UK Supreme Court noted that there is “no disagreement as to the relevant test” and adopted the ‘real possibility test’ in Porter¹⁴ (and further refined in Helow).¹⁵
12. The ‘real possibility test’ was again applied by the English High Court in H1 and another v W, D and F [2024] EWHC 382 (Comm) (“H1”), where the court removed a sole arbitrator pursuant to an application made under Section 24 of the Arbitration Act 1996¹⁶ on the grounds of apparent bias.

(2) Singapore – ‘Reasonable suspicion’ test

13. The Singapore courts apply the ‘reasonable suspicion’ test in assessing allegations of apparent bias. In Re Shankar Alan s/o Anant Kulkarni [2007] 1 SLR(R) 85 (“Re Shankar Alan”), the Singapore High Court confirmed that Singapore had adopted the ‘reasonable suspicion’ test, which requires the court to consider whether “a reasonable number of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts” (Re Shankar Alan at paragraphs 75, 76 and 91). The court further observed at paragraph 74 that there were “important differences” between the ‘reasonable suspicion’ test and the ‘real possibility’ test applied by the English courts:

In my judgment, there are indeed some important differences between them the most important of which are the reference point of the inquiry or the perspective or view point from which it is undertaken, namely whether it is from the view point of the court or that of a reasonable member of the public; and the substance of the inquiry, namely, whether it is concerned with the degree of possibility that there was bias even if it was unconscious, or whether it is concerned with how it appears to the relevant observer and whether that observer could reasonably entertain a suspicion or apprehension of bias even if the court was satisfied that there was no possibility of bias in fact. These two aspects are closely related and go towards addressing different concerns. The “real danger” or “real likelihood” test is met as long as a court is satisfied that there is a sufficient degree of possibility of bias. As noted by Deane J in Webb this is plainly a lower standard of proof than that on a balance of probabilities. But that lower test is in truth directed at mitigating the sheer difficulty of proving actual bias especially given its insidious and often subconscious nature.

14. Regarded as the case which “definitively restated” the law on apparent bias in Singapore,¹⁷ in BOI v BOJ [2018] 2 SLR 1156 (“BOI”), the Singapore Court of Appeal¹⁸ affirmed a High Court’s decision to dismiss the appellant’s application to seek the recusal of the judge from hearing the ancillary matters in contentious divorce proceedings. In reaching its decision, the Court of Appeal restated and clarified the doctrine of apparent bias, and likewise applied the ‘reasonable suspicion test’, refining the test as follows:¹⁹
    1. The applicable test is an objective one.²⁰ The test is whether there are circumstances that would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer.²¹
    2. A reasonable suspicion or apprehension arises when the observer would think, from the relevant circumstances, that bias is possible. It cannot be a fanciful belief, and the reasons for the suspicion must be capable of articulation by reference to the evidence presented.²²
    3. The court must be mindful not to supplant the observer’s perspective by assuming knowledge outside the ken of reasonably well-informed members of the public. The observer would be informed – that is, he or she would be apprised of all relevant facts that are capable of being known by members of the public generally, and the circumstances that the court may take into account in finding a reasonable suspicion of bias is limited to what is available to an observer witnessing the proceedings.²³ The observer would also be fair-minded. He or she would be neither complacent nor unduly sensitive and suspicious.²⁴
15. The test in BOI has since been affirmed and applied in subsequent cases before the Singapore courts involving challenges to arbitral awards premised on allegations of bias. For example, in the Singapore International Commercial Court’s (“SICC”) recent decision in DJO v DJP [2024] SGHC (I) 24 (“DJO”), the SICC found that there was apparent bias on the part of the presiding arbitrator (“Judge C”), who was a highly experienced judge and arbitrator.²⁵ Judge C was also the presiding arbitrator in two other related arbitrations which involved the applicant consortium, and which disputes arose out of the same project. Noting that it was “an unusual and troubling case”, the SICC applied the test in BOI,²⁶ and found that Judge C had approached the arbitration with a closed mind and pre-judged the dispute as the award did not just rehearse the submissions which were actually made to the tribunal but attributed submissions made in the earlier arbitration, “repeated almost ad verbatim” to the counsel in the arbitration.²⁷

B. Adapting the apparent bias test for use in the context of arbitration in circumstances where disclosure (or the lack thereof) is in issue

16. The tests for apparent bias were initially formulated and typically applied in the context of judicial proceedings. In light of the differences between judicial and arbitral proceedings, one would argue that a nuanced application of the test should be considered, given the particular distinct features of arbitration, as compared to litigation.
17. Indeed, it bears emphasis that arbitration embodies party autonomy. Parties must consent to arbitration, and arbitrators are generally chosen by the parties. Consequently, repeat appointments of the same arbitrators by certain parties has become a common occurrence. As mentioned above, the narrow pool of candidates from which arbitrator appointments tend to be drawn from has also resulted in double-hatting. These issues are more pronounced in certain industries, such as in GAFTA²⁸ and LMAA²⁹. GAFTA explains that disputes often arise in chain or string supply contracts and that arbitrations in such contracts, which often involve common issues of law or fact, are regularly referred to the same arbitrator or arbitrators.³⁰ LMAA similarly explains that multiple appointments are relatively common under their procedures because they frequently arise out of the same incident. There is also relatively small pool of specialist arbitrators whom parties use repeatedly.³¹

(1) England

18. Indeed, these differences between judicial proceedings and arbitral proceedings were highlighted by the UK Supreme Court in Halliburton. In that case, the underlying dispute between the parties arose out of an insurance claim made by the appellant against an insurance policy insured by the respondent (“Chubb”). The insurance claim arose out of an explosion and fire on an oil rig in the Gulf of Mexico. The appellant commenced arbitration under a Bermuda Form liability policy as Chubb refused to pay the appellant’s claim against the policy. As both parties were unable to agree on the chair of the tribunal, the parties applied to the High Court to have the parties’ dispute over the appointment resolved. Chubb’s first-choice candidate (“M”) was selected by the court. However, subsequent to M’s appointment and without the appellant’s knowledge, M accepted appointments as an arbitrator in two other arbitration proceedings, which were related to the same explosion and fire incident. The appellant therefore applied to remove M as arbitrator.
19. In reaching its decision, the UK Supreme Court noted at the outset that “it is important to bear in mind the differences in nature and circumstances between judicial determination of disputes and arbitral determination of disputes”³², and highlighted the following differences:
    56. First, judges resolve civil disputes in courts which are, as a general rule, open to the public; by contrast arbitration is a consensual form of dispute resolution which is generally conducted in private and of which there is very limited public oversight. A person who is not a party to an arbitration may know nothing about the arbitration and may have no ready means of discovering its existence, the evidence adduced and the legal arguments advanced at it, or the award made. Arbitrators and the parties to an arbitration are generally under a duty of privacy and confidentiality which militates against such discovery, in the absence of disclosure. That puts a premium on frank disclosure.

…

1. 58. Secondly, unlike a judge who decides issues of fact and law at first instance and from whose decisions the parties usually have a right of appeal, an arbitrator is not subject to appeals on issues of fact and often not on issues of law. By contrast with a first instance judge, there are very limited powers of review of the decision of an arbitral tribunal.
   59. Thirdly, a judge is the holder of a public office, is funded by general taxation and has a high degree of security of tenure of office and therefore of remuneration. An arbitrator is nominated to act by one or both of the parties to the arbitration either directly or by submitting names to the appointing body, whether an institution or the court, for appointment. The arbitrator is remunerated by the parties to the arbitration in accordance with the terms set out in the reference, and often is ultimately funded by the losing party. He or she is appointed only for the particular reference and, if arbitral work is a significant part of the arbitrator’s professional practice, he or she has a financial interest in obtaining further appointments as arbitrator. Nomination as an arbitrator gives the arbitrator a financial benefit. There are many practitioners whose livelihood depends to a significant degree on acting as arbitrators. This may give an arbitrator an interest in avoiding action which would alienate the parties to an arbitration, for example by assertive case management against the wishes of the legal teams who are presenting their clients’ cases. It also may give those legal teams an incentive to be more assertive of their side’s interests in the conduct of the arbitration than might be the case in a commercial court.
   60. Fourthly, people who are appointed as arbitrators include lawyers and also other professionals and experts in a wide range of business activities, and trades. Some, like the arbitrators in this case, may have very extensive experience of arbitration practice while others may have very limited involvement in and experience of arbitration. Moreover, arbitrators in international arbitration come from many jurisdictions and legal traditions and may have divergent views on what constitutes ethically acceptable conduct.
   61. Fifthly, it follows from the private nature of most arbitrations that where there are multiple references concerning the same or overlapping subject matter in which the same arbitrator is a member of the tribunal, the party which is not common to the various arbitrations has no means of informing itself of the evidence led before and legal submissions made to the tribunal (including the common arbitrator) or of that arbitrator’s response to that evidence and those submissions in the arbitrations in which it is not a party. It is not unusual in commercial litigation for an interested party to instruct its lawyer to sit in on a court case involving other parties which may have a bearing on its interests in a separate action. Such an expedient is generally not available in arbitration.
   62. Sixthly, in the field of international arbitration there are differing understandings of the role and obligations of the party-appointed arbitrator. There has been a lively debate as to the justification for party-appointed arbitrators and their role. …

20. Having regard to the above differences, the UK Supreme Court specifically adapted the test for apparent bias to be applied in the context of arbitration, stating (at paragraph 152) that “[t]he assessment of the fair-minded and informed observer of whether there is a real possibility of bias is an objective assessment which has regard to the realities of international arbitration”. The UK Supreme Court emphasised that an arbitrator “cannot be wholly equated with a judge” and as such there will be circumstances where an arbitrator may be under a duty to make a disclosure when a judge would otherwise not.³³ Whether there needs to be a disclosure depends on the distinctive customs and practices of the arbitration in question.³⁴ For example, there may be cases where the custom and the practice of the type of arbitration create expectations which would “negative the need for disclosure”³⁵. However, if an arbitrator has accepted appointments in multiple references concerning the same or overlapping subject matter with only one common party, that is a matter which may have to be disclosed. The UK Supreme Court found that in the context of Bermuda Form arbitrations, in the absence of an agreement to the contrary between the parties to whom the disclosure should be made, multiple appointments must be disclosed. However, the UK Supreme Court ultimately dismissed the appeal, having found that that the facts and circumstances in that particular matter did not give rise to give rise to the conclusion that a fair-minded and informed observer would infer from M’s oversight in making disclosure that there was a real possibility of unconscious bias on his part.³⁶
21. The Halliburton approach has been applied in subsequent English cases. In Aiteo Eastern E & P Company Ltd v Shell Western Supply and Trading Ltd & Ors[2024] EWHC 1993 (“Aiteo”), the claimant applied to the English High Court to set aside four partial awards pursuant to Section 68(2) read with Section 33 of the UK Arbitration Act 1996.³⁷ The claimant claimed that it had been deprived of its fundamental right to present its case and to have its case determined by a tribunal that has complied with its duty of impartiality, as there was apparent bias on the part of one of the members of the tribunal (“DEG”). In particular, it was argued that DEG failed to make timely disclosures of a number of instructions by its nominating counsel (on top of disclosures already made).
22. The court found that there were three previous engagements by the same counsel that DEG should have disclosed.³⁸ Applying the ‘reasonable suspicion’ test, the court found that in viewing the circumstances as a whole, the fair-minded and informed observer would consider that there was a significant number of appointments and engagements between DEG and the nominating counsel, in a relatively short space of time.³⁹ Additionally, and applying the UK Supreme Court’s reasoning in Halliburton, the court also noted there was no timely disclosure of the engagements.⁴⁰ The court also placed weight on the fact that the claimant’s subsequent Article 14(3) challenge to the ICC Court to have DEG removed was successful.⁴¹ Accordingly, the observer would regard these non-disclosures in conjunction with the previous appointments as highly relevant to the question of real possibility of bias.⁴² The English High Court ultimately concluded that the observer will find a real possibility of unconscious bias.⁴³

(2) Singapore

23. The Singapore courts have since referred to and agreed with the decision in Halliburton in two cases involving challenges against arbitrators.
24. In CFJ v CFL [2023] SGHC (I) 1 (“CFJ”), after the applicants were unsuccessful in their request to the SIAC to ask that the presiding arbitrator withdraw from the arbitration because of justifiable doubts over his independence or impartiality, they applied to the SICC to (a) set aside the partial award that had been issued in the arbitration and (b) remove the presiding arbitrator on the grounds that there was a reasonable suspicion that he lacked independence and/or impartiality, pursuant to Articles 12(2) and (3) of the Model Law (read with Sections 3 and 8 of the International Arbitration Act 1994).
25. The basis of the applicants’ complaint against the presiding arbitrator was the presiding arbitrator’s appointment to a panel of experts constituted by the highest court in Ruritania⁴⁴. The applicants contended that there was apparent bias because there was a direct link between the defendants and the panel of experts. The High Court disagreed with the applicants’ arguments, finding that the connections drawn were “tenuous”⁴⁵. Rather, the crux of the issue was whether a fair-minded observer would draw the connection between the Ruritanian government and the Ruritanian court.⁴⁶ Applying the test of apparent bias established in BOI, and further applying the disclosure requirement imposed on arbitrators as set out in Halliburton⁴⁷, the court found that a “a fair-minded and informed observer would understand that the Ruritanian Court (and by extension the Panel) sits distinct from the Ruritanian Government”⁴⁸ , and therefore declined to remove the presiding arbitrator and to set aside the partial awards on this basis.⁴⁹
26. In BYL v BYN [2020] 4 SLR 1, an application was made to set aside a partial award issued in ICC arbitration proceedings on the grounds that (a) the tribunal had granted reliefs which were alternative in nature, thereby failing to decide the dispute before it, and (b) the arbitrator nominated by the applicants made belated and only partial disclosures of his co-counsel relationship with the law firm representing the defendant, and which relationship was only negotiated and entered into while the partial award was still being drafted and finalised. The SICC rejected both grounds of challenge. Specifically on ground (b), the SICC did not find for apparent bias. In determining that the arbitrator nominated by the applicants had sufficiently discharged his disclosure obligation, the SICC expressed its view that Halliburton provided “[h]elpful guidance” on this issue and noted that this was not a case that there was “something more” (per Halliburton at paragraph 76) which would be inferred from the arbitrator’s responses to the disclosure requests or the arbitrator’s subsequent resignation letter that would support an inference of apparent bias (BYL at paragraph 66).

C. The Way Forward

(1) IBA Guidelines

27. The discussion on apparent bias and the concomitant issue of disclosure requirements in international arbitration would not be complete without considering the IBA Guidelines on Conflict of Interest (“IBA Guidelines”).⁵⁰ First published in 2004, the latest IBA Guidelines were approved by the IBA Council in May 2024. The IBA Guidelines are well-established as a “soft law” instrument in providing a framework for potential arbitrators and parties to help determine whether an arbitrator may have a conflict of interest that could affect his / her judgment that may frustrate the arbitrator’s independence and/or impartiality in deciding a case. Indeed, arbitral institutions expressly refer to the IBA Guidelines or at least been inspired by the IBA Guidelines in addressing arbitrator conflicts.⁵¹
28. Part I, 3(a) of the IBA Guidelines refers to the “Disclosure by Arbitrator” and it provides that “[i]f facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, the arbitrator shall disclose such facts or circumstances to the parties, the arbitration institution or other appointing authority (if any, and if so required by the applicable institutional rules), and the co-arbitrators, if any, prior to accepting their appointment or, if thereafter, as soon as the arbitrator learns of them.”
29. While the IBA Guidelines provide valuable guidance on the different scenarios which may require disclosure, the guidelines are ultimately meant to be comprehensive, though not exhaustive⁵² and therefore may still be insufficient or may not envisage all possible scenarios. For example, in Aiteo, there was dispute between the parties on the appropriate interpretation to be taken of the IBA Guidelines, and how the different iterations of the IBA Guidelines should be read together.⁵³ As a side, it bears mention that given the nature of the guidelines (i.e., they are specifically meant to address conflict situations), the IBA Guidelines are also limited as they do not address other situations of apparent bias, for example, situations where the arbitrator’s conduct or statements made by the arbitrator are called into question, such as in the H1 case in England.

(2) Arbitral Institutions

30. Apart from the IBA Guidelines, most arbitral institutions also conduct a conflict check and request the prospective arbitrator to provide a statement of impartiality and independence⁵⁴ before they are appointed. Arbitral institutions may also have practice notes and/or guidance notes regarding the arbitrator’s continuing duty of disclosure and conflict of interest.⁵⁵
31. Although this serves as an additional layer of oversight from arbitral institutions regarding disclosures and conflict checks, whether or not the arbitrator makes sufficient disclosures is still largely dependent on the arbitrator. If relevant circumstances arise during the course of the arbitral proceedings that may create perceptions of lack of impartiality, it will ultimately be dependent on the arbitrator to decide whether it would be necessary to voluntarily disclose such circumstances.
32. Given the limitations of the existing frameworks available, arbitral institutions may also wish to consider conducting a more rigorous disclosure scheme for their arbitration users. As the arbitral institutions would have the information and data available regarding the appointments of arbitrators and the relevant parties, one could consider whether arbitral institutions should proactively alert prospective arbitrators if there are relevant multiple appointments that have not been disclosed to the parties that the institution may be aware of.⁵⁶ This could be in line with the duty of continuing obligation of disclosure as found in various arbitration rules or practice / guidance notes. This would be particularly helpful in cases where an arbitrator may have just inadvertently failed to disclose a relationship although it had intended to do so.

(3) Practical Considerations for Counsel

33. Lastly, counsel should also remain proactive throughout the entire arbitral process in ensuring that the arbitrator fulfils his/her ongoing duty of disclosure and to monitor the arbitrator’s conduct for any signs of partiality.
34. During the initial stages of considering potential arbitrator nominees, counsel should do the necessary due diligence checks to minimise the risks of any potential situations which may fall foul of the disclosure requirements under the IBA Guidelines. For example, for industry-specific cases, counsel may consider asking industry-related questions to ascertain if the arbitrator’s expertise or special interest(s) in any subject-matter which may be relevant to issues arising in the arbitration could affect his/her impartiality in determining the dispute. Counsel should also do the necessary checks based on publicly available information, such as the arbitrator’s online profiles on professional networking websites and arbitration databases. To the extent possible, counsel may also wish to check any publicly available awards and/or decisions issued by the arbitrator in question to ascertain if there may have been any repeat appointments and/or inadvertently undisclosed relationships between parties, counsel, and among arbitrators.
35. If any questionable conduct by the arbitrator arises during the proceedings that could potentially indicate bias, counsel should promptly document such instances. In accordance with the relevant arbitral institution rules, counsel should bring the matter to the attention of the arbitral institution or the tribunal at the earliest opportunity. Addressing such concerns without delay ensures transparency in handling issues of impartiality, thereby minimising risks of challenges later in the arbitral process and further ensures that the complaining party cannot be accused of having waived its right to object if it does so at a later stage.

D. Conclusion

36. In order to ensure due process in arbitration, it is clear from the recent cases discussed above that national courts in England and Singapore are prepared to intervene when an arbitrator’s conduct demonstrates apparent bias even if they are generally cautious in setting aside arbitral awards. The courts therefore recognise the importance of arbitrators adhering to disclosure requirements, as repeated appointments can influence perceptions of impartiality and may lead to dissatisfied parties resorting to challenge the award on grounds of breach of due process.
37. As such, to reduce the risks of a dissatisfied party raising frivolous or baseless challenges against arbitrators, a careful balance must be struck to ensure that arbitrators disclose any potential conflicts. In order for arbitration to maintain its legitimacy as a dispute resolution method, it is the responsibility of all parties participating in the arbitration process (arbitrators, counsel, and arbitral institutions) to be diligent in identifying legitimate concerns about impartiality and address them promptly and responsibly. For arbitrators, they should err on the side of caution, or risk a challenge to the award down the road, causing parties to have to incur significant time and costs even after proceedings have concluded, thereby undermining the legitimacy of arbitration as a method of dispute resolution method.

Footnote(s):

¹ The authors are grateful to their colleague Thea Elyssa Vega for her considerable assistance with the research and preparation of this chapter.

² As acknowledged by the Singapore International Commercial Court in DJO v DJP [2024] SGHC (I) 24 at [2].

³ For e.g., see as reported in “Repeat Appointments, Code of Conduct – Background Papers”, ICSID, 25 February 2021, p.9, accessible at https://icsid.worldbank.org/sites/default/files/Background_Papers_Repeat_Appointments_final_25.2.2021.pdf.

⁴ ICC Dispute Resolution 2023 Statistics, ICC, 2024, p. 10, accessible at https://iccwbo.org/wp-content/uploads/sites/3/2024/06/2023-Statistics_ICC_Dispute-Resolution_991.pdf

⁵ “Understanding the Unsaid: Biases in Arbitration and the Role of Tribunals and Courts”, speech delivered at the Delhi Arbitration Weekend 2024 on 6 March 2024, by The Honourable Justice Judith Prakash, Senior Judge, Supreme Court of Singapore (“Biases in Arbitration”) at [5].

⁶ Also referred to as ‘imputed bias’ or ‘presumed bias’.

⁷ See for e.g. UCG (London) Limited v Westminster Magistrates Court [2019] EWHC 409 (Admin) at [36 i] to [36 iv]

⁸ Gough at [14].

⁹ Gough at [14].

¹⁰ Porter at [103].

¹¹ Helow at [3].

¹² Halliburton at [49].

¹³ Halliburton at [49]; Section 33 of the UK Arbitration Act 1996 provides (in part) that “[t]he tribunal shall (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent…”

¹⁴ Halliburton at [52], citing Porter at [103].

¹⁵ Id, citing Helow at [1] to [3].

¹⁶ Section 24 of the UK Arbitration Act 1996 provides (in part) that “[a] party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds (a) that circumstances exist that give rise to justifiable doubts as to his impartiality…”

¹⁷ CFJ v CFL [2023] SGHC (I) 1 at [50].

¹⁸ The Court of Appeal is the highest court in Singapore.

¹⁹ BOI at [103]].

²⁰ BOI at [103(b)])].

²¹ BOI at [103(a)])].

²² BOI at [103(c)])].

²³ BOI at [103(e)].

²⁴ BOI at [103(d)].

²⁵ DJO at [114].

²⁶ DJO at [113].

²⁷ DJO at [114].

²⁸ Grain and Feed Trade Association

²⁹ London Maritime Arbitrators Association

³⁰ Halliburton at [43].

³¹ Halliburton at [44].

³² Halliburton at [55].

³³ Halliburton at [134].

³⁴ Halliburton at [133].

³⁵ Halliburton at [134].

³⁶ Halliburton at [149] and [150].

³⁷ Section 68(2) of the UK Arbitration Act 1996 provides (in part) that “[s]erious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant – (a) failure by the tribunal to comply with section 33 (general duty of tribunal)“ ; Section 33 of the UK Arbitration Act 1996 provides (in part) that “[t]he tribunal shall — (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent…”

³⁸ Aiteo at [78], [98], [100], [109]-[110].

³⁹ Aiteo at [168].

⁴⁰ Aiteo at [170] to [173].

⁴¹ Aiteo at [184]; Article 14(3) of the ICC Rules 2017 (which were the applicable rules in the underlying arbitrations in Aiteo) provides that the ICC Court may decide on a party’s challenge to an arbitrator for an alleged lack of impartiality or independence (see Article 14(1)).

⁴² Aiteo at [170].

⁴³ Aiteo at [180]-[184].

⁴⁴ The parties and details relating to the parties were anonymised in this judgment, and fictional names were given to the countries involved in the dispute so that the parties cannot be identified.

⁴⁵ CFJ at [57].

⁴⁶ CFJ at [58]–[59].

⁴⁷ CFJ at [75].

⁴⁸ CFJ at [64].

⁴⁹ CFJ at [54].

⁵⁰ The IBA Guidelines is generally set out with the General Standards and different application lists of the General Standards. The various applications or the lists of situations are divided as follows: red list (non-waivable red list[50]; waivable red list[50]), orange list[50], green list[50].

⁵¹ See for e.g., Section 121, LCIA Guidance Note for Parties and Arbitrators; See also the statement that “the ICC Rules are largely inspired by, and consistent with, the IBA Guidelines” (Alexis Mourre, Arbitral Institutions and Professional Organisations as Lawmakers, in Evolution and Adaptation: The Future of International Arbitration, 87-88 (Kalicki and Raouf eds,. 2019) at 99.

⁵² Alvaro Lopez de Argumedo Pineiro, “Interaction between the IBA Guidelines on Conflicts of Interest of Arbitrators and the ICC Arbitration Rules”, in Iurgium (previously Spain Arbitration Review) Volume 22, Issue 44 (2022), pp. 19 to 32 (“Alvaro”).

⁵³ See for e.g., Aiteo at [70], [99] to [102], [160].

⁵⁴ See for e.g., SIAC Code of Ethics; ICC Arbitrator Statement Acceptance, Availability, Impartiality and Independence

⁵⁵ See for e.g., LCIA Guidance Note for Parties and Arbitrators; ICC Note to Parties and Arbitral Tribunal on the Conduct of the Arbitration

⁵⁶ Assuming this is not already done.