whether to raise a formal objection to Mr Bingham continuing as arbitrator. Mr Bingham did not fully answer the questions and then, of his own volition, called a hearing and issued a ruling that there was no conflict or apparent bias. This prompted Cofely to make its section 24 application.
On the facts, Hamblen J considered that five of the seven grounds put forward by Cofely did indeed raise the possibility of apparent bias by Mr Bingham. These grounds were:
i. The admissions made by Knowles in the Eurocom v Siemens case about how it sought to influence the appointment of arbitrators so that Mr Bingham was appointed and other arbitrators were excluded.
ii. Mr Bingham’s evasive and defensive response to questions from Cofely.
iii. Mr Bingham’s calling of an unrequested hearing to consider Cofely’s request for information on his relationship with Knowles during which he ‘descended into the arena’, that is, acted unprofessionally.
iv. The information which eventually emerged that, over the previous three years, Mr Bingham had been appointed as arbitrator in cases which involved Knowles 25 times, out of a total of 137 appointments in that time period. Those 25 cases reflected 25% of his income. He had held in favour of Knowles, or the party with which Knowles was involved, on 18 of those 25 occasions (72%).
v. The overly defensive and aggressive approach Mr Bingham took in his witness statement in the court proceedings, and the fact that he had ‘taken sides’.
The judge placed significant weight on the frequency of the appointments and the percentage of income that Mr Bingham had received from Knowles. The fact that an arbitrator is frequently appointed by the same party has been previously found to be a relevant issue when considering apparent bias, especially if there is an element of material financial dependence. He also emphasised that an ‘unapologetic’ or ‘aggressive’ reaction to questions on the arbitrator’s independence has also previously been found to make apparent bias more, rather than less, evident — as it has been concluded that such actions indicate that the arbitrator realises something has gone wrong and that attack is the best form of defence.
Another important point was the ‘no conflicts’ declaration in the CIArb form signed by Mr Bingham on the acceptance of his nomination. Notably, Mr Bingham had left blank the answer to the following question, despite his clear previous involvement with Knowles: “If you are aware of any involvement, however remote, but in particular an involvement you or your firm has (or has had in the last five years) with either party to the dispute please disclose.” Notwithstanding the oversight by the CIArb in allowing the appointment of Mr Bingham to go ahead when he had not filled in all of the nomination form, Mr Bingham’s carefree approach to the CIArb conflict rules and corresponding nomination form was used as further evidence to demonstrate his apparent bias. On the basis of all of the above, the application was granted.