A common law perspective?

Initially, it seemed to be possible to discuss generally the subject of the approach of common law to the independence and/or impartiality of arbitrators in international arbitration. On the other hand, an immediate possible complication is that many common law jurisdictions have adopted the UNCITRAL Model Law on International Commercial Arbitration while England has stopped short of doing so. There are also marked differences between common law systems, which cannot be usefully explored in this essay. Such an exercise would lack precision. That does not, however, mean that some reference to authorities from the common law world may not be appropriate.

The constitutional context

It is not always clearly understood that there is no concept such as the law of the United Kingdom or British law. Constitutionally, the United Kingdom consists of four separate law districts: England, Wales, Northern Ireland and Scotland. The system which obtains in England, Wales and Northern Ireland is correctly described as English law. Pertinent to arbitration law, the governing statute is the Arbitration Act 1996, an instrument strongly influenced by the UNCITRAL Model Law on International Commercial Arbitration but not incorporating the Model Law. By contrast, in Scotland a different legal system (with roots in continental Europe) obtains. Scotland adopted and enacted the Model Law. This article is not concerned with the law of Scotland.

The Arbitration Act 1996

Our subject is the fundamental principle in international commercial arbitration that arbitrators must be and remain independent and/or impartial. This principle is formulated in slightly different ways in different national systems. The relevant provisions of the Arbitration Act 1996 are as follows:

1. General principles

The provisions of this Part [Arbitration Pursuant to an Arbitration Agreement] are founded on the following principles, and shall be construed accordingly-[Page91:]

(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; . . .

24. Power of court to remove arbitrator

(1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds-

(a) that circumstances exist that give rise to justifiable doubts as to his impartiality; . . .

33. General duty of the tribunal

(1) The tribunal shall-

(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, . . .

These three provisions must be interpreted not in a black letter way but contextually, purposively and dynamically.

The ethos of the 1996 Act

Moreover, apart from these generalizations, the special ethos of the 1996 Act must be taken into account. This point is clearly brought out by the House of Lords decision in Lesotho Highlands Development Authority v. Impreglio SpA and others.1 In the context of an issue of excess of jurisdiction, the House of Lords found that what had occurred was at most an erroneous exercise of powers which actually existed. The decision emphatically affirmed that the English courts do not redecide matters which the parties entrusted to the arbitrators. For present purposes, observations in the principal judgment about the ethos of the 1996 Act are of importance. The relevant passages are as follows:

17. It is important to take into account the radical nature of the changes brought by the Arbitration Act 1996. Lord Mustill and Stewart Boyd QC in Commercial Arbitration (2001 Companion Volume to the Second Edition, preface) stated:

The Act has however given English arbitration law an entirely new face, a new policy, and new foundations. The English judicial authorities … have been replaced by the statute as the principal source of law. The influence of foreign and international methods and concepts is apparent in the text and structure of the Act, and has been openly acknowledged as such. Finally, the Act embodies a new balancing of the relationships between parties, advocates, arbitrators and courts which is not only designed to achieve a policy proclaimed within Parliament and outside, but may also have changed their juristic nature.

These general propositions are correct but do not fully explain the important changes which are relevant to the present case.

18. Lord Wilberforce played a large role in securing the enactment of the Arbitration Bill. During the second reading of the Bill in the House of Lords he explained the essence of the new philosophy enshrined in it: Hansard, col 778, 18 January 1996. He said:

I would like to dwell for a moment on one point to which I personally attach some importance. That is the relation between arbitration and the courts. I have never taken the view that arbitration is a kind of annex, appendix or poor relation to court proceedings. I have always wished to see arbitration, as far as possible, and subject to statutory guidelines no doubt, regarded as a freestanding system, free to settle its own procedure and free to develop its own substantive law - yes, its[Page92:] substantive law. I have always hoped to see arbitration law moving in that direction. That is not the position generally which has been taken by English law, which adopts a broadly supervisory attitude, giving substantial powers to the court of correction and otherwise, and not really defining with any exactitude the relative positions of the arbitrators and the courts.

Other countries adopted a different attitude and so does the UNCITRAL model law. The difference between our system and that of others has been and is, I believe, quite a substantial deterrent to people to sending arbitrations here. …

How then does this Bill stand in that respect? After reading the debates and the various drafts that have been moving from one point to another, I find that on the whole, although not going quite as far as I should personally like, it has moved very substantially in this direction. It has given to the court only those essential powers which I believe the court should have; that is, rendering assistance when the arbitrators cannot act in the way of enforcement or procedural steps, or, alternatively, in the direction of correcting very fundamental errors.

(My emphasis)

Characteristically, Lord Wilberforce did not express his understanding of the new Arbitration Bill in absolute terms. But the general tendency of his observations, and what Parliament was being asked to sanction, is clear. It reflects the ethos of the 1996 Act.

These observations are of general importance in relation to the 1996 Act. They are also of special relevance to the issues of independence and impartiality of arbitrators.

English judicial decisions

Undoubtedly, it is true that in English arbitral practice before and since the 1996 Act, in the context of challenges to the independence and/or impartiality of arbitrators, reliance has sometimes been placed on decisions of the courts, which have in turn been influenced by Strasbourg jurisprudence. For the English courts, the law can now be regarded as settled along the following lines by decisions of the House of Lords. In Magill v. Porter, 2 the House of Lords approved a modification of the common law test of bias enunciated in R v. Gough.3 The purpose and effect of the modification was to bring the common law rule into line with the Strasbourg jurisprudence. In Porter Lord Hope of Craighead explained the context of this development.

102. . . . The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed, at p 711 A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp726H-727C:

85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, [Page93:] no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to 'a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

The emphasis by Lord Hope on the common thread in common law jurisdictions is noteworthy. In any event, the House of Lords unanimously endorsed Lord Hope's statement of principle. Subsequently, in Lawal v. Northern Spirit Ltd4 the House of Lords, in a unanimous opinion, summarized the position as follows (para. 14):

there is now no difference between the common law test of bias and the requirements under Article 6 of the [European Human Rights] Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Magill v Porter had at its core the need for 'the confidence which must be inspired by the courts in a democratic society' . . . Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 200 CLR 488, 509, at para 53, by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'.

On the facts in Lawal the House of Lords held that part-time judges ought not to appear as counsel before a panel of the Employment Appeal Tribunal consisting of one or two lay members with whom they had previously sat. The House of Lords observed (para. 22):

What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago.

This observation was not made in the context of an arbitration case. On the other hand, it does prompt, even at this early stage, the question whether the capacity for growth of the arbitral system is more constrained than English substantive law. And if there is merit in this point, the question is in what direction such development is likely to move.

The difference between arbitrators and judges

Apart from the difference between court proceedings and arbitration identified in Lesotho by reference to Lord Wilberforce's statement in Parliament, there is another difference which requires explanation. An English judge is not a servant of the[Page94:] government. On the contrary, it is an important part of his function to stand between the citizen and the government. He is under a constitutional duty to protect the citizen against the government in accordance with justice and the law. This is a matter of high public policy. A judge is therefore in a fundamentally different position from an arbitrator. It may nowadays well be right to recognize the emergence of an international public policy which serves to ensure the integrity of the arbitral process. But qualitatively this still means that the position of judges, at least in the English system, is very different from arbitral tribunals. Where does this leave the status of court decisions in relation to challenges under the 1996 Act? For my part, the legal position is clear. Court decisions, whatever the level of authority, cannot be directly binding in respect of challenges to judges. On the other hand, the 1996 Act, as properly construed, is binding. The outcome is that court decisions may sometimes be useful as a guide to issues regarding challenges on the ground of lack of independence and impartiality of arbitrators. But considerable circumspection is required in applying a judicial decision on independence and impartiality of judges to an arbitral context. It may well be that the emphasis in Porter on justice being seen to be done may lead to an unwarranted increase in challenges of arbitrators.

Independence and/or impartiality in different contexts

The terms of section 24(1)(a) anchor the right to challenge an arbitrator on the existence of circumstances that gives rise to justifiable doubts as to his impartiality. There is no reference to independence in the 1996 Act. Different terminology is to be found in the UNCITRAL Model Law on International Commercial Arbitration and different arbitration rules. The Model Law provides that all members of the arbitral tribunal must remain independent and impartial (Art. 12(2)). The relevant provision of the UNITRAL Arbitration Rules is to similar effect (Art. 10). The ICC Rules of Arbitration provide for a right of challenge for 'lack of independence or otherwise' (Art. 11(1)). The LCIA Rules contain both the concepts of impartiality and independence (Art. 5.2).

The question arises whether there is a material difference between impartiality and independence. For my part, a contextual approach is required. It mandates that in arbitration there are not two separate requirements. On the contrary, the two critical words are legally synonymous. In truth, there is only one meaning, deriving its principal force from the word impartiality. After all, an arbitrator who is not impartial must be disqualified. In my view, the international shift is towards this view. That is how, in my view, section 24(1)(a) should be construed.

That brings me back to the ICC Rules of Arbitration, which permit a right of challenge only for 'lack of independence or otherwise'. Having expressed my admiration for the ICC system publicly on several occasions, I feel compelled to say that the concentration of the ICC Rules on independence without any reference to impartiality swims against the tide of legal logic. And the reference to 'or otherwise' is hopelessly vague. The ICC Rules are in need of radical overhaul on this point.

The mandatory character of section 24(1)(a)

It is important to note that the 1996 Act provides that section 24(1)(a) has a mandatory character. It is therefore not open to the parties to agree on the appointment of an arbitrator who is acknowledged to be not impartial. It is also not possible for the parties to leave the final decision on the arbitrator's impartiality to institutional decision-making under the arbitration rules of the LCIA or ICC. Under the 1996 Act the English court will finally decide the issue. If an arbitral institution has decided not to remove an[Page95:] arbitrator the English court, when called upon to decide, may rule to a contrary effect. Given that the status of section 24(1)(a) is one of mandatory public policy, it follows that it is not legally possible under the 1996 Act to agree in advance to the appointment of an arbitrator who is acknowledged to be partial. On the other hand, it is possible for a party to lose the right to challenge for lack of impartiality by subsequent waiver.

The IBA Guidelines on Conflicts of Interest in International Arbitration

In England, the publication in June 2004 of the IBA Guidelines, prepared by eminent arbitration specialists, is regarded on balance as a useful development. The rationale of the IBA Guidelines is clearly stated in the text (Introduction, para. 1):

Reluctant parties have more opportunities to use challenges of arbitrators to delay arbitrations or to deny the opposing party the arbitrator of its choice. Disclosure of any relationship, no matter how minor or serious, has too often led to objections, challenge and withdrawal or removal of the arbitrator.

Mr V.V. Veeder, QC, one of the foremost international arbitration specialists in the modern world, has produced a detailed and balanced critique of the IBA Guidelines. Rightly he praised the initiative. On the other hand, he exposed grounds for criticism of the IBA Guidelines. 5 I find myself in complete agreement with Mr Veeder's comments on the text. I therefore take the liberty of citing at some length from an English translation of Mr Veeder's analysis (pages 15-16):

Above all, the interest lies in the practical illustrations collected by the IBA under its colour-coded scheme: red, orange and green. These illustrations are intended to provide the detailed guidance lacking in national laws and to establish uniformity in the application of the IBA text's general standards. The red list describes matters where typically the arbitrator should not accept or (if already accepted) should resign the appointment; and it is divided into two sub-lists: matters non-waivable and waivable by the parties. The green list describes matters where there is no matter founding any challenge to the arbitrators and nothing requiring disclosure to the parties. The intermediate orange list describes matters which are neither red nor green. It is here that the IBA text has become particularly controversial because the practical effect of most orange matters, at the time when a person is being considered for appointment by a party or appointing authority, may convert its colour to red, thereby barring appointment even where the IBA text does not itself disqualify the person; and even after appointment, the orange list provides a malignly imaginative check-list for tactical challenges by recalcitrant parties.

However, as described in the IBA text (Para. 3 of Part II), the orange list 'is a non-exhaustive enumeration of specific situations which (depending on the facts of a given case) in the eyes of the parties may give rise to justifiable doubts as to the arbitrator's impartiality or independence. The Orange List thus reflects situations that would fall under General Standard 3(a), so that the arbitrator has a duty to disclose such situations' (emphasis added). This general principle requires the arbitrator to disclose facts and circumstances 'that may, in the eyes of the parties, give rise to doubts as to the arbitrator's impartiality or independence', implicitly importing a wholly subjective test . . . In practice, coupled with the presumption in favour of disclosure in case of doubt, this points to the fullest form of disclosure. In short, the IBA text appears to introduce the elaborate form of full written disclosure now common in the USA but still alien to most other national[Page96:] jurisdictions . . . If fuller disclosure is to be made, the test should not be wholly subjective . . .

In other respects, the IBA text swims against the tide of current best practices. It declines to follow the practice of State courts and national institutions in distinguishing between different stages of an arbitration (Explanation (d) to General Standard 3(d)). Whilst disclosure should be made at any time, does it make much practical sense in addressing a challenge to an arbitrator to ignore the timing of a challenge, as the IBA text suggests? At the outset of an arbitration, a challenge made in good faith where recusal can cause no harm to the arbitration or the adverse party should almost always succeed (if the arbitrator does not voluntarily resign); but at the end of a long and expensive arbitration, where the final award was made unanimously by all three arbitrators and the challenged arbitrator has conducted himself or herself impeccably, why should the arbitrator be removed so easily and the finality of the award thereby jeopardized? The IBA's text is here most unlikely to be followed by arbitral institutions or State courts. Paradoxically, the IBA text terminates the duty of disclosure too early, judged by other practices. When a final award is being challenged, particularly with a view to remitting it to the arbitration tribunal, it is not acceptable for an arbitrator privately to take sides with a party by (for example) providing an opinion to the aggrieved party, as occurred recently in one well-known case.

Taking into account this citation I now turn to concrete problems which arise in an English context.

Arbitrators and barristers in the same chambers

A distinctive feature of the English legal system is the division of the legal profession in two branches. On the one hand, there are law firms in England organized on a very similar basis to law firms in Europe and elsewhere. In respect of such firms, partners and associates are self-evidently in a relationship which brings them within the scope of the challenge provisions of section 24(1)(a). On the other hand, in England barristers' chambers are organized on a fundamentally different basis which is deeply embedded in English legal culture. Each barrister in a set of chambers practises for his own account. He has his own clients. While there is some pooling of expenses, barristers do not have a financial interest in each other's cases. They do not share profits or fees. Each barrister is served separately by a clerk or clerks. They have separate computers and dedicated fax facilities. A barrister is essentially independent of other members of his chambers. On the other hand, for very many years there has been a corporatist element inasmuch as chambers engage in promotional activities which serve to advertise the chambers as an entity.

Given the predominant feature that in all respects a barrister practises for his own account, the traditional view has been that arbitrators and barristers practising in the same chambers are not subject to challenge. 6 This view has been upheld by ICC in dismissing a challenge. ICC did not, however, disclose the grounds for its decision. 7 In 1991 this view also prevailed in the Paris Court of Appeal in Kuwait Foreign Trading Contract and Investment Co. v. Icori Estero SpA. 8 In detailed reasons the Paris Court of Appeal founded its decision on the essential independent character of a barrister's profession as practised in a set of chambers. The Paris Court of Appeal is a[Page97:] distinguished court with great expertise in international arbitration. It accepted expert evidence from Sir Michael Kerr about an arbitration held under the LCIA Rules in which the continuation as arbitrator of an English barrister was challenged on the ground that counsel in the same chambers was instructed in the case. Under LCIA practice challenges are decided by a special tribunal composed of three members of the LCIA Court. The members of this tribunal were the director of the Austrian Chamber of Arbitration, a distinguished Dutch lawyer and editor of leading works on international arbitration, and an English QC. They unanimously rejected the challenge, holding that

The fact that [the English arbitrator] is located in the same Chambers as Counsel for the Respondent is no sufficient ground to give rise to justifiable doubts as to his impartiality or independence. 9

The reference to impartiality and independence reflected the wording of Article 3.1 of the LCIA Rules (1985 edition), which stated that '[a]ll arbitrators . . . shall be and remain at all times wholly independent and impartial . . .'. In 1999, in Laker Airways Inc v. ILS Aerospace Ltd and Others, 10 the same point arose in the English High Court. The matter was heard in the Commercial Court before Mr Justice Rix, now Lord Justice Rix, a member of the Court of Appeal. To ensure that all sides of the question were fully ventilated Rix J required the appointment of an amicus curiae. Rix J is a specialist in the field of international arbitration. The central part of his reasoning was as follows:

Mr Bolkenhol's first point regarding a conflict of interest between counsel and arbitrator is misconceived. Of course there is a conflict of interest, or more properly speaking duty, between them. It is the duty of counsel to advance the case of his client within the limits of his professional responsibilities, while it is the duty of the arbitrator to adjudicate impartially between the parties. A conflict of interest properly so called only arises as an impediment when the same person, or what is in law regarded as the same person, undertakes conflicting duties to different clients or puts himself in a position where he has a conflict between his duty to his client and his own self-interest. That would occur if barristers were employed by the same organisation or were all partners of one another in the same firm and then sought to appear against or before one another. It is the essence of practice at the Bar, however, that this is not so: barristers are all self-employed. This is not a mere matter of form. On the contrary, practising barristers are prohibited by the rules of their profession from entering partnerships or accepting employment precisely in order to maintain the position where they can appear against or in front of one another. If it were otherwise, public access to the Bar would be severely limited: each time a member of a set of chambers accepted instructions, he would debar any other member of those chambers, although independently practising self-employed barristers, from accepting instructions from any other party with a different interest in the dispute; nor would he be able to appear before a recorder, deputy judge or arbitrator from the same chambers in the same proceedings. This would be a severe limitation on the administration of justice in this country. Especially in the context of specialist legal services, where it may be that only a handful of chambers practise within a particular specialty, it would mean that public choice of counsel would be drastically cut. Of course, this would be by the way if the rule were that the doctrine of conflict of interest prevented barristers at the same chambers from appearing against one another. But such a rule has never been recognised, and the contrary practice is an everyday occurrence in the courts, as has been recognised in the authorities referred to above. 11[Page98:]

It is now possible to take account of the comments of the IBA Working Group on barristers who practise as arbitrators. 12 There are valuable insights. First, attention is drawn to the following features:

most sets of chambers, members of which practise as international arbitrators, maintain procedures that make it impossible to undertake general conflict searches of those members' individual current or concluded case lists. As well as separate clerking facilities, these chambers also provide secure dedicated fax and direct line telephone facilities for international arbitration practitioners, so as to ensure that communication of sensitive information remains confidential.

Where barristers practise as arbitrators, it is clearly desirable that such arrangements should be in place. And in saying this I do not profess to be exhaustive.

Secondly, one of the most valuable parts of the IBA Guidelines is the emphasis on transparency. Specifically, the relevant passage of the Working Group's comments reads as follows:

Nevertheless, the Working Group considers that full disclosure to the parties of the involvement of more than one barrister in the same chambers in any particular case is highly desirable. Thus, barristers (including persons who are 'door tenants' or otherwise affiliated to the same chambers) should make full disclosure as soon as they become aware of the involvement of another member of the same chambers in the same arbitration, whether as arbitrator, counsel, or in any other capacity.

I would respectfully endorse these remarks.

Bringing the threads together, and subject to elementary practical arrangements as discussed, I have no doubt at all that present-day practice in specialist London chambers fully complies with the requirements of section 24(1)(a) and international arbitration rules generally.

Beauty parades of arbitrators

There is nothing controversial about lawyers making enquiries about the availability of a slate of barristers as potential arbitrators, leaving the selection of the arbitrator to the party concerned. What has from inception been controversial is the practice of conducting beauty parades, which was imported from the United States into Europe in the early 1990s. A distinctive feature of this practice involved comparing the merits of, say, five or six arbitrators after a process of questioning potential candidates.

One possibility is, of course, that the questioning would be restricted to the qualifications of the arbitrators and their availability. One would have to be somewhat naïve to think that this is what the beauty parade system is exclusively about. Redfern and Hunter throw some light on this:

One distinguished US arbitrator [Gerald Aksen] has identified his own guidelines, having informed the interviewers of them in advance. First, other than in exceptional circumstances, the interviewers must travel to see him in his office (i.e., he will not respond to a 'summons' to the premises of the party concerned or their representatives). Secondly, the interviewing delegation must be led by an external lawyer retained by the[Page99:] party in question (i.e., he will not see the party's employees on their own). Thirdly, the meeting should not be conducted over lunch or other event involving hospitality-regardless of who will pay the bill. Fourthly, the meeting should not last for more than half an hour. Fifthly, he will take a note of the discussion that he will regard as disclosable to interested parties if appropriate. Sixthly, if appointed, he will inform the arbitrator nominated by the other party of both the fact and the content of the discussion with his appointor. These are eminently sensible guidelines that should avoid any real risk of impropriety; and prospective arbitrators would be wise to adopt a similar system, or to adapt them in a way that seems appropriate to the circumstances of individual cases. 13

The very adoption of this practice by a distinguished US arbitrator is most revealing as to the underlying legal culture.

Redfern and Hunter envisage that it may be permissible to question potential arbitrators 'about qualifications for the case in hand'. On the other hand, probing the prospective arbitrators' views on the merits is strictly beyond the pale. Let me test this proposition against an example not very far removed from what happens in the real world of beauty parades. Imagine a dispute about an alleged frustration of an oil contract or force majeure in respect of it. The suggestion is apparently that it may be permissible to question the potential arbitrators about their general views on frustration or force majeure as opposed to specific views about the application to the particular case. Can there be the slightest doubt that such a beauty parade would be improper? The suggestion that it would only be intended to elicit information about qualifications to hear the case in hand might lead to the response 'tell that to the marines'.

Unfortunately, there has been far too much pussy-footing about this subject. The opportunity arose in the IBA Guidelines to address the matter forthrightly. Unfortunately, the IBA text treats arbitral interviews and beauty parades as a 'green' matter not requiring disclosure, provided that it is only 'an initial contact with the appointing party or an affiliate of the appointing party (or the respective counsels) prior to appointment, if this contact is limited to the arbitrator's availability and qualifications to serve or to the names of possible candidates for a chairperson and did not address the merits or procedural aspects of the dispute'. 14 The discussion of this important subject is wholly inadequate. It is the weakest part of the IBA Guidelines. At the very least, the IBA text should have treated all interviews and beauty parades as presumptively disclosable to the parties.

Leaving aside disclosure it seems to me probable that the system of beauty parades will not survive scrutiny of the English courts under section 24(1)(a). Other major common law countries such as India, Canada, Australia and New Zealand may be no less critical of the practice if daylight is let in on it. 15

Good faith

The idea that arbitration is an honourable profession has long ago disappeared under commercial pressures. But the observance of good faith at all times is still an enduring value which must guide arbitrators in all their dealings. [Page100:]

1
[2005] UKHL 43

2
[2001] UKHL 67; [2002] 2 AC 357.

3
[1993] AC 646

4
[2003] UKHL 35

5
V.V. Veeder, 'L'indépendance et l'impatartialité de l'arbitre dans l'arbitrage international' in L. Cadiet, ed., T. Clay, E. Jeuland, Médiation et arbitrage (Litec, 2005) 219.

6
M. Hwang, 'Arbitrators and Barristers in the Same Chambers-An Unsuccessful Challenge' Business Law International, Vol. 6 (May 2005) 235.

7
Ibid. at 241.

8
Cour d'appel de Paris (1re Ch. suppl.) 28 June 1991, Rev. arb. 1992.568-571.

9
This part of the judgment of Paris Court of Appeal can conveniently be accessed at Laker Airways Inc v. ILS Aerospace Ltd [1999] 2 Lloyds Law Reports 51-52.

10
[1999] 2 Lloyd's Law Reports 45.

11
Ibid. at 52.

12
'Background Information on the IBA Guidelines on Conflicts of Interest in International Arbitration' Business Law International, Vol. 5, No. 3 (Sept. 2004) 433 at 455-56 (§ 4.5).

13
A. Redfern & M. Hunter et al., Law and Practice of International Commercial Arbitration, 4th ed. (London: Sweet & Maxwell, 2004) at 198 (§ 4.50).

14
IBA Guidelines, § 4.5.1.

15
Space does not permit consideration here of the controversial initiative in this area of the Chartered Institute of Arbitrators' Practice Guideline 16: The Interviewing of Prospective Arbitrators, of April 2007.