ReSolution Issue 18, September 2018 | Page 6

ReSolution: In Brief

Disclosure of arbitral apointments in related or overlapping references
In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 the court indicated that it is “generally desirable” to disclose any matter that can give rise to a ‘real’ danger of bias. In Guidant LLC v Swiss Re International SE [2016] EWHC 1201, the court acknowledged that fears over inside knowledge were a legitimate concern, while at the same time recognising that a common arbitrator does not, in itself, justify an inference of apparent bias; “[s]omething more is required.”
In Halliburton Company v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817, the English Court of Appeal considered whether it is possible for an arbitrator to accept multiple appointments with overlapping reference and one common party, without giving rise to doubts over impartiality and, at what point should an arbitrator disclose these further appointments – if at all?
The Court dismissed the appeal, stating that, on the facts of the case, there was no real possibility that the arbitrator was biased when viewed from the perspective of a “fair minded and informed observer”.
Nevertheless, the Court confirmed the position under English law (and best practice in international arbitration) that “disclosure should be given of facts and circumstances known to the arbitrator which…would or might give rise to justifiably doubts as to his impartiality”.















Court of Appeal considers question of confidentiality in respect of settlement agreement reached in FDR mediation
In McKay v The Commissioner of Inland Revenue [2018] NZCA 138, the Court of Appeal recently considered the privilege and confidentiality of a settlement agreement reached under the Family Dispute Resolution Act 2013 (FDRA).
The Appellant appealed the High Court judgment which found that an agreement produced through mediation (the Mediated Agreement) under the FDRA was not privileged and/or confidential and was therefore available for the Commissioner of Inland Revenue to use when making an assessment under the Child Support Act (the CSA).
The Court found the High Court was correct in concluding that s 14 of the FDRA does not confer privilege on the Mediated Agreement. It agreed with the High Court’s observation that the underlying purpose of the privilege conferred by s 14(2) was to encourage parties engaged in settlement negotiations to speak freely, and to facilitate out of court resolution.