ReSolution Issue 13, May 2017 | Page 23

UK: High Court Dismisses Application To Remove ARBITRATORS

Gordon Bell

The English Commercial Court has published two recentjudgments of Mr Justice Popplewell in a single anonymised case (P v Q and others) concerning the removal of two arbitrators under section 24(1 )(d)(i) of the Arbitration Act 1996 (the "Arbitration Act"). The decisions reinforce the English Courts' non-interventionist approach when it comes to arbitrations with their seat in England.

BACKGROUND TO THE APPLICATIONS
The claimant, P, and the first defendant, Q, were parties to commercial agreements which were governed by English law and provided for disputes to be submitted to arbitration under the LCIA Rules, before three arbitrators. The parties fell into dispute and P brought arbitral proceedings against Q. With the agreement of the parties, the chairman appointed a secretary of the tribunal. The secretary was a qualified lawyer at a US law firm before becoming a legal advisor to the chairman.
During the procedural stages of the arbitration, the chairman mistakenly sent an email, intended for the secretary, to P's lawyers. In the email, the chairman asked the secretary: "Your reaction to this latest [letter] from [P]?"
The misdirected email triggered an application by P to the LCIA Court seeking to remove all three members of the tribunal on five grounds:
1. The improper delegation of the tribunal's decision making functions to the secretary;
2. A breach of the duty by the chairman in seeking the secretary's views on substantive procedural matters;
3. The failure of the co-arbitrators to participate in the proceedings;









4. Doubts as to chairman's independence or impartiality (based on the comments made by the Chairman at an international conference); and
5. Breach of duty by the chairman in failing to keep documents confidential.
The LCIA Court dismissed grounds 1, 2, 3 and 5, but upheld 4 and revoked the chairman's appointment. (The decision of the LCIA Court in relation to ground 4 has not been made public.)
Having failed to remove the entire panel, P issued an application in the Commercial Court to remove the remaining two arbitrators (defendants 2 and 3, or "R" and "S") under section 24 of the Arbitration Act, based (at least, in part) on grounds 1 and 3 above. P also applied to the court seeking disclosure from the arbitrators of documents to support the removal application (having already failed in