Following the Supreme Court hearing in the Halliburton v Chubb case, Craig Tevendale of Herbert Smith Freehills in London considers the significance of the Supreme Court’s forthcoming judgment and whether the case will end the recent controversy on apparent bias.
In a decision that whipped up a storm in the international arbitration community, the Court of Appeal decided in 2018 that there had been no apparent bias where an arbitrator failed to disclose to one of the parties his appointment in multiple proceedings with different parties which arose out of the same incident.
This month’s Supreme Court hearing of Halliburton’s appeal against that decision was, without doubt, the most significant English court hearing in arbitration since the case of Jivraj v Hashwani on arbitrator status in 2011. The Halliburton judgment, anticipated to be delivered in the next four to six weeks, should give clarity on legal issues which are critical to the reputation of London arbitration.
It is important to emphasise that the Supreme Court is expected to provide guidance on the test for apparent bias, regardless of whether the appeal itself succeeds. Halliburton may well lose the appeal on the facts, given the English courts’ pro-arbitration and anti-intervention approach. If the court decides against Halliburton it is likely to be based on the specific facts relating to the overlapping references in question, the nature of the insurance arbitration market, and the Bermuda Form context. However, even if the appeal fails, it is expected to be defeated on different reasoning than the problematic approach in the Court of Appeal judgment.
The Halliburton case deals with a number of important legal issues on which the arbitration community needs clarity, including whether multiple overlapping appointments are in themselves an issue. The Court of Appeal’s lack of concern in relation to repeat and overlapping appointments is questionable, given that repeat-appointing parties are likely to know an arbitrator’s position in relation to particular issues from other cases.
This information will not be available to users new to arbitration, and therefore risks an inequality of arms. Where there are overlapping proceedings the common party may also hold a tactical advantage over other parties, by having the ability to test submissions in a way that flushes out the arbitrator’s position on particular points. The common party will potentially also have access to evidence unavailable to the other party and may influence the arbitrator’s decision making with submissions not seen by the other party. Even where an arbitrator makes every effort to confine his or her deliberations to material only from the relevant reference, this “compartmentalisation” may not prove entirely effective. It is expected that the Supreme Court judgment will address these problematic issues, and how they impact on the test for apparent bias, in more depth.
A further controversial gap in the Court of Appeal decision was the lack of guidance on why the non-disclosure itself did not meet the threshold for apparent bias. The Court of Appeal stated that an additional factor was needed, referred to as “something more”, but the judgment does not elaborate further. This is surprising. While it has been suggested that the duty of confidentiality placed upon an arbitrator prevents appointments being disclosed, it is widely accepted in the arbitration community that the duty of confidentiality does not trump the duty of arbitrator disclosure. It is expected that the Supreme Court will make it clear that overlapping appointments should be disclosed, and it is expected that the significance of non-disclosure will be addressed more clearly.
While it is well established that the perspective of the “fair-minded and informed” observer is the starting point from which to decide allegations of apparent bias, it is much less clear what that observer should be assumed to know. There is a compelling argument that the observer should be assumed to have knowledge of the international arbitration context, and that informed expectations should therefore differ from those in litigation. This is another area which was not explored in any detail in the Court of Appeal judgment, and where the Supreme Court’s judgment should clarify the position.
The Court of Appeal dismissed the issue of financial benefit resulting to arbitrators from multiple appointments. However, it is important to take this into account when considering the effect of repeat appointing. In the arbitration world (and indeed in previous judgments), it has long been recognised that there could be an (even if unconscious) incentive for arbitrators to avoid antagonising parties who frequently appoint them. It would be helpful if the Supreme Court judgment recognised this.
The case is notable for the multiple interventions from interested institutions. The LCIA and ICC have rightly emphasised the importance of ensuring that the English test for apparent bias is aligned with international norms. For their part, the LMAA and GAFTA have expressed concern that any decision which conflates repeat appointments with apparent bias may cause real problems for arbitration in their sectors. Specialist trade arbitrations, which frequently see strings of cases and for which there may be a limited pool of arbitrators with the requisite sector knowledge, may indeed fall to be treated differently. It is likely that the Supreme Court judgment will recognise this nuance, and that sector-focused arbitration communities may continue in accordance with their current practice.
Interestingly, while the arbitrators in the Halliburton case have been accorded confidentiality in these proceedings, at the hearing the Supreme Court expressed some scepticism on this and asked for submissions as to whether anonymity should be sustained. It is hard to justify the continued anonymity of the arbitrators in question, particularly in circumstances where the Court of Appeal referred to the eminent reputation of the arbitrator ‘M’ as a factor militating against apparent bias.
As to where this leaves us, while the arbitration community has called for clarity on apparent bias, the differing positions adopted by the interveners underlines that there is no consensus on how to address the issue of “frequent flyers”. Regardless of the ultimate decision on the facts in this particular case, it is to be hoped that certainty and clarity are delivered by the Supreme Court judgment – and that arbitrators, counsel and parties are better equipped to navigate the difficult territory of apparent bias.
A version of this article first appeared in the Global Arbitration Review.
For further information, please contact Craig Tevendale, or your usual Herbert Smith Freehills contact.