should be given of facts and circumstances known to the arbitrator which, in the language of section 24 of the Act, would or might give rise to justifiable doubts as to his impartiality. Under English law this means that facts or circumstances which would or might lead the fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the arbitrator was biased. (3) Consequences of failing to make disclosure of circumstances which should have been disclosed: The CA suggested that if a disclosure that ought to have been made has not been made, that will mean that the arbitrator will not have displayed the “badge of impartiality” which he should have done and that the fact of non-disclosure “must inevitably colour the thinking of the observer”. However the CA held that non-disclosure of a fact or circumstance which should have been disclosed, but does not in fact, on examination, give rise to justifiable doubts as to the arbitrator's impartiality, cannot in and of itself justify an inference of apparent bias. Therefore while the CA concluded that M ought as a matter of good practice and, in the circumstances of this case, as a matter of law to have made disclosure to Halliburton at the time of his appointments in References 2 and 3, the fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility that M was biased. Commentary Although the circumstances of this case demonstrate that non-disclosure by an arbitrator of potential sources of conflict are not necessarily fatal, it is good practice to disclose issues when in doubt. In the Halliburton judgment the overlap between the different arbitrations was not substantial but in cases where the references have more in common, the duty to disclose may be even more important. However, provided that those cautionary words are kept in mind, parties and arbitrators should feel more confident following Halliburton that it should be possible to appoint the same arbitrator in overlapping references.
About the Author
Daniella Smith Senior Associate
Daniella is a Managing Associate specialising in commercial litigation. She has experience of working on large and complex litigation both in the English High Court and in International Arbitration. Daniella provides advice to a wide range of clients including FTSE 100 companies and Private Equity Firms in relation to disputes involving warranty claims, shareholder disputes, professional negligence and contract termination highly across all three of the key performance indicators, including client relationship skills, technical legal ability, and project management.