21 KEY ARBITRATION DEVELOPMENTS FROM 2020
7. Arbitrator's duty of disclosure in the UK
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There is a legal duty on an arbitrator to make a disclosure of such matters which could arguably be said to give rise to justifiable doubts about an arbitrator's impartiality. This is encompassed within the statutory obligation of fairness, such that "an arbitrator who knowingly fails to act in a way which fairness requires to the potential detriment of a party is guilty of partiality". SWIPE
Parties can consent to matters not needing to be disclosed, such as multiple appointments by the same party or in relation to the same matters, but there must be clear evidence of such consent or of a practice of dispensing with consent for such matters.
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A failure to disclose does not, however, automatically mean that the arbitrator should be removed.
The Court will need to determine whether "circumstances exist that give rise to justifiable doubts as to [the arbitrator's] impartiality" (Section 24, Arbitration Act 1996) at the time that the issue of their removal arises for determination by the court. SWIPE
In addition, in considering their duty of disclosure, arbitrators must also be cognisant of their obligations of confidentiality. If this prevents them from making a relevant disclosure, then they will have to decline the proposed appointment in the case where disclosure could not be made.
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Source Halliburton Company v. Chubb Bermuda Insurance Ltd, [2020] UKSC 48
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Contact
Neil Newing Counsel, London neil.newing@signaturelitigation.com
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