Failure to Disclose but No Bias: The UKSC’s Decision in Halliburton Company (Appellant) v. Chubb Bermuda Insurance Ltd (Respondent)
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Key takeaways:
- The Supreme Court confirmed that English law requires arbitrators to disclose to the parties related prior and/or subsequent appointments where there is an overlap in parties and subject matter.
- In assessing whether an arbitrator has breached their duty of disclosure, the Court will have regard to the facts and circumstances as at and from the time the duty arose. Though a failure to disclose relevant matters will not necessarily result in a finding of bias, such failure is a factor that the Court will take into account in assessing whether there is a real possibility of bias.
- In assessing whether there is a real possibility that an arbitrator is biased, the Court will have regard to the facts and circumstances known at the time of the hearing to remove the arbitrator. The Court will apply an objective test in determining whether there is a real possibility of bias, having regard to the particular characteristics of international arbitration (including the private nature of most arbitrations) and applicable international standards, such as the IBA Guidelines on Conflicts of Interest in International Arbitration. The fact that an arbitrator is repeatedly appointed by one party is unlikely— on its own—to support a finding of bias.