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Archive for November, 2011

And our choice is ….

Choice of an arbitrator, impartial and independent of each of the parties involved, can present difficulties.  A and others v B and another [2011] EWHC 2345 (Comm) reminds us about justifiable doubts as to impartiality pursuant to s24(1)(a) Arbitration Act 1996.

The parties selected a QC to act as sole arbitrator.  He had, in the past, been instructed by both parties’ solicitors as, the judge later commented, one would expect of experienced and competent counsel specialising in the relevant field.  In late 2009 he held a procedural hearing and fixed the hearing of the arbitration for September 2010.  Also in late 2009 an issue unexpectedly arose in a case in which he had been instructed previously by one of the firms of solicitors acting in the arbitration.  The arbitrator mentioned this wholly unconnected case after a three day hearing in September 2010.  This did not provoke any adverse response from the other solicitors involved in the arbitration until after he published his award.

The judge, Mr Justice Flaux, reviewed the relevant cases and applied the test suggested by Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357: “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.”   Although the fair-minded and informed observer is not to be regarded as a lawyer, he or she is expected, Mr Justice Fkayx stated on the authorities, to be aware of the way in which the legal profession in this country operates in practice.  Nevertheless, counsel for the applicant felt the independent observer would be concerned that the arbitrator may have been unconsciously biased in favour of the party whose solicitors were instructing him in another case.  Whilst Mr Justice Flaux found the submissions attractively and beguilingly put, he could not accept them.

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