Halliburton Company v Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd)

UKSC 2018/0100, on appeal from [2018] EWCA Civ 817

Halliburton Company (Claimant/Appellant) v (1) Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd), (2) M, (3) N, (4) P (Defendants/Respondents).

The intervenors in this case included: the International Court of Arbitration of the International Chamber Of Commerce; the London Court of International Arbitration; the London Maritime Arbitrators Association; the Grain And Feed Trade Association; and the Chartered Institute of Arbitrators.

Further information and case documents are available at https://www.supremecourt.uk/cases/uksc-2018-0100.html. The oral submission by Constantine Partasides QC on behalf of the ICC on 12 November 2019 is available at https://www.supremecourt.uk/watch/uksc-2018-0100/121119-pm.html.

Counsel appearing for the ICC International Court of Arbitration included: Todd Wetmore, Alexandra and van der Meulen (Three Crowns LLP, Paris), Constantine Partasides QC, Maanas Jain, Nicola Peart and Ridhi Kabra (Three Crowns LLP, London).

Written Submission in Support of Intervention by the ICC International Court of Arbitration, 12 November 2019

I. Introduction

1. In accordance with the Supreme Court’s amended Order of 21 August 2019 (as notified on 22 August 2019), this Written Submission in Support of Intervention is filed on behalf of the International Court of Arbitration of the International Chamber of Commerce (ICC Court).
2. As identified in the agreed “Statement of Facts and Issues”,¹ the Court of Appeal’s judgment (Halliburton Company v Chubb Bermuda Insurance Ltd & Ors [2018] EWCA Civ 817) raises the following points of law of general public importance to the wider international arbitration community:
1. whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias; and
2. whether and to what extent he may do so without disclosure.

3. By holding that an arbitrator’s acceptance of “appointments in multiple references concerning the same or overlapping subject matter with only one common party does not of itself give rise to an appearance of bias” without “something more”,² it is the ICC Court’s position that the Court of Appeal’s judgment has introduced uncertainty as to whether English law adequately recognises the particular difficulties created by such multiple appointments in the context of international arbitration. Multiple appointments with only one common party concerning the same or overlapping subject matter can create an objectionable inequality in an individual arbitration. Such multiple appointments cannot be considered in the abstract, i.e., in and of themselves, without regard to the particular circumstances. Depending on those circumstances, something more may not be required to give rise to an appearance of bias. Put another way, the “something more” may be nothing more than the particular circumstances of the multiple appointment in question.
4. By failing to draw any consequences from the non-disclosure of such multiple appointments absent other factors, it is the ICC Court’s position that the Court of Appeal’s judgment gave insufficient weight to such non-disclosure. Although a failure to disclose may in general be insufficient alone to justify a disqualification, a failure to disclose multiple appointments concerning overlapping subject matter with only one common party necessarily creates a situation of inequality between the parties that can be sufficient to disqualify. The Court of Appeal’s apparent reliance on the “accidental” nature of the non-disclosure in this case³– by which it meant that arbitrator M did not consider at the time that he was under a duty to make disclosure – undermines the pro-disclosure consensus that has rightly emerged in international arbitration. It will be rare indeed for an arbitrator deliberately to withhold disclosure that the arbitrator knows at the time should be made, and rarer still for a party to be able to prove that arbitrator’s state of mind.
5. As explained further in this submission, the Supreme Court’s determination will affect the international arbitration community in London and beyond. As a leading global arbitral institution, the ICC Court has a general interest in the integrity of arbitral proceedings, and in their proper and efficient conduct. The ICC Court therefore submits this statement as an independent body representing the users of the arbitral community as a whole (rather than any particular sub-specialism within that community), and whose expertise brings to bear an international and independent perspective that may assist the Supreme Court in determining the appeal.

II. The ICC Court’s interest in the outcome of this appeal

6. The International Chamber of Commerce (ICC) is the largest business organisation in the world. It has a network of over six million members, including many of the world’s largest companies, small and medium-sized enterprises, business associations and local chambers of commerce in over 100 countries. It works to promote and facilitate international trade and investment as a force for sustainable and inclusive economic growth to the benefit of all. The ICC is an advocate for international business on issues connected with international trade and investment in key inter-governmental fora, including the United Nations, the World Trade Organisation and the G-20 group of countries. It also represents the interests of international business to national policy-makers and regulators.
7. The ICC develops internationally-agreed rules and standards which business organisations adopt voluntarily and incorporate into their international commercial agreements. These include the ICC Rules of Arbitration (ICC Rules), which are used in arbitrations administered by the ICC Court.
8. The ICC Court is the world’s leading arbitration institution. Since its creation in 1923, it has administered approximately 24,000 cases from around the world.⁴ In the most recent arbitration market study, it ranked as the most regularly preferred arbitral institution in the world.⁵ The ICC Court therefore offers the perspective of all international arbitration users, rather than those of only a particular sub-specialist community. While the ICC Court’s service is international, a significant proportion of its caseload concerns arbitrations seated in London,⁶ which is the most popular seat for international arbitrations in the world.⁷
9. The ICC Court’s role is to supervise arbitration proceedings under the ICC Rules. In particular, it ensures that they are conducted in conformity with applicable standards and rules, and with the required speed and efficiency. In doing so, the ICC Court performs various functions, including: ascertaining prima facie jurisdiction; deciding on consolidation; fixing the place of arbitration (where required); constituting arbitral tribunals; monitoring the financial aspects of each case; and scrutinising all draft arbitral awards to reinforce quality and enforceability.
10. Most relevantly for present purposes, the ICC Court also decides on challenges made against arbitrators based on allegations of a lack of independence and impartiality. In these challenges, reference is often made by parties to the underlying law of the seat of the arbitration when making (or resisting) a challenge to an arbitrator. The law applicable to arbitrator challenges in England is therefore taken into account in the ICC Court’s determination of arbitrator challenges in the large number of London-seated arbitrations it administers. As the ICC Court has an interest in maintaining a consistent approach across the cases it administers, such decisions in London-seated arbitrations also have an impact on the ICC Court’s approach to determination of challenges more generally (i.e., in respect of arbitrations seated outside of London).
11. Given the ICC Court’s interest in maintaining consistency and coherence between London-seated arbitrations and arbitrations seated in other jurisdictions, the ICC Court is concerned that, absent further clarification from the Supreme Court, the Court of Appeal’s judgment will result in a lack of clarity as to whether English law adequately recognises the particular difficulties created by such multiple appointments in the context of international arbitration.
12. Moreover, by holding that there may be no consequences under English law arising from a failure to disclose multiple appointments by one party in overlapping references absent “other factors”, the Court of Appeal’s judgment gave insufficient weight to such non-disclosure.⁸ This risks undermining the pro-disclosure consensus that has rightly emerged in international arbitration, which is the very mechanism that a non-common party depends upon to evaluate whether the particular circumstances are such that the multiple appointment does give rise to an appearance of bias.

III. The ICC Court’s approach to independence and impartiality of arbitrators

13. Article 11(1) of the ICC Rules require arbitrators to “be and remain impartial and independent of the parties involved in the arbitration”. This duty is widely recognised to be “a basic tenet of international arbitration and one which the [ICC] Court considers to be essential to the legitimacy of ICC arbitration”.⁹ As such, it applies to “every arbitrator”, whether party-nominated or appointed by the ICC Court.¹⁰
14. Article 11(2) and (3) of the ICC Rules requires every prospective or existing appointed arbitrator to disclose in writing “any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality”. Disclosure is considered to serve a critical dual purpose in international arbitration: it is both a mechanism to allow for the evaluation of whether the duty of impartiality and independence is being fulfilled, and it is itself a means of fulfilling that duty.¹¹
15. In assessing whether disclosure should be made, prospective or appointed arbitrators are instructed by the ICC to “consider all potentially relevant circumstances” including, but not limited to, the following circumstances:

[t]he arbitrator or prospective arbitrator acts or has acted as arbitrator in a case involving one of the parties, or one of its affiliates;

[t]he arbitrator or prospective arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates; and

[t]he arbitrator or prospective arbitrator acts or has acted as arbitrator in a related case.¹²

16. Article 14(1) of the ICC Rules provides that a party may challenge an arbitrator “whether for an alleged lack of impartiality or independence, or otherwise” by the submission to the ICC Secretariat of a written statement specifying the facts and circumstances on which the challenge is based. In determining such a challenge, the ICC Court applies an objective rather than a subjective standard.¹³
17. The procedure that the ICC Court follows to determine a challenge is as follows:¹⁴
1. The ICC Secretariat collects the comments relied upon by the challenging party in advancing the challenge, as well as any comments on the challenge in writing from the challenged arbitrator, the other parties to the dispute, and the other members of the tribunal.
2. Upon receipt of such comments, the ICC Secretariat will draft a written report to brief the ICC Court on the challenge decision sought from it. Relevant correspondence and evidence will be attached for the ICC Court’s consideration. The ICC Secretariat will as a rule conduct searches of its database of previous decisions to inform the ICC Court about similar challenges that have been considered in the past. The ICC Secretariat will usually make recommendations to the ICC Court regarding the admissibility and merits of the challenge in question.
3. Following receipt of the ICC Secretariat’s report, a member of the ICC Court is assigned to draft a second report, which will contain that member’s recommendation on the outcome of the challenge.
4. The ICC Court will then consider the ICC Secretariat’s report and the recommendation proposed by the designated ICC Court member either at one of its monthly plenary sessions¹⁵ or, exceptionally, during one of its weekly committee sessions,¹⁶ or even at special committee sessions whenever the issue is urgent.
5. The ICC Secretariat will promptly notify all parties and the arbitrators of the ICC Court’s decision, stating simply whether the challenge was admissible and accepted or rejected on the merits. The Court will in principle communicate the reasons supporting its decision on the challenge where a party so requests in advance of the Court session during which the challenge will be decided upon.¹⁷

18. The ICC Court determines challenges under Article 14 of the ICC Rules on a regular basis. By way of illustration, in the ten-year period from 1 January 2001 to 1 January 2011, the ICC Court decided 397 challenges, of which 30 were successful.¹⁸ Between January 2014 and December 2018, the ICC Court decided 231 challenges, of which 26 were accepted.¹⁹
19. In deciding challenges, the ICC Court seeks to develop and maintain consistency, coherence and predictability in its treatment of challenges.²⁰
20. In so doing, the ICC Court takes account of “a range of factors and sources from a variety of perspectives, none of which are in themselves necessarily decisive”.²¹ Primary among these is the ICC Court’s and ICC Secretariat’s own extensive internal experience in dealing with challenges. Significant weight is accorded to decisions taken in previous cases that were based on similar facts and circumstances. In addition, the ICC Court may consider international sources on the meaning and scope of independence and impartiality, such as the IBA Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines).
21. Notably, the ICC Court also takes into account the standards of independence and impartiality as applied under the law at the place of arbitration.²² In particular, the ICC Court often finds it “useful” to receive “extracts of relevant case law or doctrine defining the standards of independence and impartiality under the law at the place of arbitration”.²³ This is particularly the case for arbitrations seated in England, given that Sections 24(1) and 24(2) of the English Arbitration Act 1996 grant English courts the power to review de novo a refusal by the ICC Court to uphold a challenge while an arbitration reference is still pending.²⁴
22. In this way, English law will be taken into account in deciding challenges in London-seated arbitrations. Moreover, given London’s prominence as a leading seat of ICC arbitration, and the ICC Court’s priority of maintaining a consistent treatment of challenges across its caseload, English law will impact other ICC arbitrations as well.

IV. The ICC Court’s position on the issues raised in these proceedings

23. The ICC Court makes submissions on the following two points of law of general public importance, which the Supreme Court will have to consider, namely:²⁵
1. whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias (Issue 1); and
2. whether and to what extent he may do so without disclosure (Issue 2).

A. Issue 1: Multiple appointments by only one party in overlapping or related references

24. The Court of Appeal’s finding that the fact of multiple appointments by one common party in multiple references concerning the same or overlapping subject matter does not “of itself” give rise to an appearance of bias, and that “something more” is needed, has introduced uncertainty as to whether English law adequately considers the particular difficulties created by such multiple appointments in international arbitration.
25. In some particular arbitration sub-specialisms, such as maritime and commodities arbitration, it may not be unusual (indeed it may be advantageous) to see the same arbitrators appointed multiple times in disputes concerning the same or overlapping subject matter. In this way, those particular sub-specialisms may experience (and indeed create) their own particular expectations. However, in the wider community of users of international commercial arbitration which straddles all sectors (as the ICC Court’s case load does), and which draws arbitrators from a wider international pool, multiple appointments of the same arbitrator in references with the same or overlapping subject matter and involving only one common party is far less usual and can give rise to an appearance of bias.
26. As the Court of Appeal itself recognised,²⁶ multiple appointments of the same arbitrator by one common party concerning the same or overlapping subject matter may produce a situation in which a multiple appointee and the one common party will have access to information and acquire knowledge that has not been made available to other participants in the particular arbitral reference. This will result in: (a) an inequality of information and knowledge between the parties and the different members of the arbitral tribunal in question; (b) a risk that decisions are based on more than the record in the particular arbitration; and (c) a risk of prejudgment of overlapping issues.
27. The extent of the resulting inequality and the degree of related risks will necessarily depend on the particular circumstances of such multiple appointments. Notwithstanding this necessary dependency, the Court of Appeal held that the “fact” of such multiple appointments is insufficient “of itself” to establish an appearance of bias, and that “something more” is needed. In arriving at such a formulation, the Court of Appeal has introduced a lack of clarity as to the position under English law, and whether it is in step with the international approach.
28. Multiple appointments cannot be considered in the abstract, i.e., in and of themselves, without regard to the particular circumstances. Depending on those circumstances, something more may not be required to give rise to a reasonable appearance of bias. Put another way, the “something more” may be nothing more than the particular circumstances of the multiple appointment in question. This may be what the Court of Appeal itself intended by its holding on the first question.
29. Accordingly, the ICC Court submits that the better and clearer formulation of the English law position is that the fact of multiple overlapping appointments with only one or some common parties concerning the same or overlapping subject matter can, depending on the circumstances, give rise to reasonable doubts as to an arbitrator’s impartiality.
30. Consistent with such a position, in its published guidance on the interpretation and application of the ICC Rules, the ICC Secretariat has noted that the ICC Court takes a particular approach to challenges to an arbitrator’s impartiality in the event of multiple appointments. That approach involves a careful evaluation of the particular circumstances of such multiple appointment:

The Court’s practice is different where an arbitrator has been or is involved in some capacity in a case that is actually related to the arbitration at hand. In deciding such challenges the Court takes into account whether the arbitrator had (or may have) access to information that is relevant to the case but is not available to all parties or their counsel, with the result of inequality in the access to the information.²⁷

31. In application of its guidance, the ICC Court has declined at the outset of arbitrations to confirm the appointment of an arbitrator who has received multiple appointments by one of the parties in related arbitrations on the basis of the particular circumstances of the multiple appointments.²⁸
32. Several jurisdictions and other arbitral institutions, including those relied on by Chubb in its Written Case, also adopt an entirely consistent view that multiple overlapping appointments can, in particular circumstances, give rise to reasonable doubts as to an arbitrator’s impartiality. In these cases, challenges to arbitrators have been rejected not because the fact of multiple overlapping appointments was found to be non-problematic, but because the multiple overlapping appointments at issue did not in the particular circumstances of the case give rise to doubts as to the arbitrator’s impartiality.
33. For example, in the context of ICSID arbitration (in which a materially different and higher test for removal of an arbitrator is applied than that under Section 24 of the English Arbitration Act 1996),²⁹overlapping appointments in cases involving similar factual circumstances and one common party have been acknowledged to raise concerns regarding an arbitrator’s impartiality.³⁰ Such challenges have, however, either been rejected or accepted only after an evaluation of the particular circumstances of the case.
34. For example, in Caratube v Kazakhstan, an arbitrator was successfully challenged for previously sitting in an arbitration that arose from “broadly the same factual context” and in which the claimants made essentially the same factual allegations on the basis of the same evidence, and which were also potentially relevant to determining the legal issues in the Caratube arbitration. Having considered the particular circumstances of the degree of factual and legal overlap, the challenge was upheld on the basis that “[i]n this situation, the arbitrator cannot reasonably be asked to maintain a ‘Chinese wall’ in his own mind: his understanding of the situation may well be affected by information acquired in the other arbitration”.³¹
35. Similarly, in the national jurisprudence relied upon by Chubb, challenges on account of multiple overlapping appointments have been rejected only after a consideration of the particular circumstances of each case:
1. In France, an arbitrator appointed in concurrent arbitrations concerning the same construction project by the common party, Creighton, survived a challenge because the disputes in the related arbitrations raised distinct issues.³² The first arbitration concerned a dispute between Creighton and its subcontractor over the termination of the subcontractor’s agreement, whereas the second arbitration concerned a distinct dispute over the termination of the construction agreement between Creighton and the Government of Qatar.
2. In Switzerland, such challenges have been rejected because the related arbitrations engaged the same parties on both sides, and therefore did not give rise to any issue of information inequality.³³
3. In Canada, the Ontario Superior Court of Justice has made clear that the “inquiry to determine whether there is a reasonable apprehension of bias is ‘highly fact specific’”.³⁴

36. In holding in this case that multiple appointments with one common party in cases with overlapping subject matter does not of itself give rise to an appearance of bias, and that “something more” and “something of substance” is required for an appearance of bias,³⁵ it is submitted that the Court of Appeal’s decision has created uncertainty as to whether English law is now out of step with this international approach.

The ICC Court’s Answer on Issue 1:

37. For all these reasons, the ICC submits that the better and clearer formulation of the English law position on Issue 1 is as follows: the fact of multiple overlapping appointments with only one or some common parties concerning the same or overlapping subject matter can, depending on the circumstances, give rise to reasonable doubts as to an arbitrator’s impartiality.

B. Issue 2: The consequences of a failure to disclose multiple appointments by one common party in overlapping or related cases

38. The potential for such multiple appointments, depending on the circumstances, to give rise to reasonable doubts as to an arbitrator’s impartiality leads to the second issue before the Supreme Court; namely the duty of disclosure, and the consequences of a failure to fulfil that duty.
39. In relation to this second issue, the ICC Court’s position, which it is submitted reflects internationally accepted practice, is that the arbitrator should not be – and indeed cannot be – the sole judge of his or her own appearance of impartiality in circumstances where there is an inequality arising from multiple appointments. Disclosure by the arbitrator is required to allow the otherwise unaware party to be informed of these circumstances and be in a position to make objections to, or accept, the circumstances. In this regard, the ICC Court welcomes the Court of Appeal’s finding that disclosure of arbitrator M’s overlapping appointments ought, not only as a matter of good practice, but also as a matter of obligation, to have been made.³⁶
40. This is consistent with the ICC Court’s published guidance to parties and arbitral tribunals, to the effect that disclosure is essential so as to allow parties to be:

… fully informed of all facts or circumstances that may be relevant in their view in order to be satisfied that an arbitrator or prospective arbitrator is and remains independent and impartial or, if they so wish, to explore the matter further and/or take the initiatives contemplated by the [ICC] Rules. An arbitrator or prospective arbitrator must therefore disclose in his or her Statement, at the time of his or her appointment and as the arbitration is ongoing, any circumstance that might be of such a nature as to call into question his or her independence in the eyes of any of the parties or give rise to reasonable doubts as to his or her impartiality. Any doubt must be resolved in favour of disclosure.³⁷

41. As the current President of the ICC Court, Alexis Mourre, explained in a recent public speech, disclosure is to be favoured so that parties are put in a position to determine for themselves whether or not to raise a challenge:

… parties have a legitimate right to be aware of any circumstance that is relevant in their eyes to decide whether they should object to the confirmation of an arbitrator or mount a challenge. This is their decision and the parties cannot be deprived of that decision. The arbitrator is not the judge of his or her own independence and impartiality.³⁸

42. In the words of a leading French arbitration scholar:

Ultimately, it appears that the obligation of disclosure must be precise, exhaustive, and impervious to anything that can diminish it (reputation, seniority, commonality).³⁹

43. In addition to the principled rationale for recognising disclosure as an imperative, the practical benefits of early disclosure are also readily apparent. Any concern affecting impartiality – perceived, wrongful or otherwise – can be addressed (and, one way or the other, eliminated) at an early stage of the proceeding. In the words of the House of Lords in Davidson:

The best safeguard against a challenge after the event, when the decision is known to be adverse to the litigant, lies in the opportunity of making a disclosure before the hearing starts. That is the proper time for testing the tribunal's impartiality. Fairness requires that the quality of impartiality is there from the beginning, and a proper disclosure at the beginning is in itself a badge of impartiality.⁴⁰

44. Consistent with this, the IBA Guidelines include scenarios of multiple appointments in their “Orange List”, i.e., a non-exhaustive list of specific situations that should be disclosed at the earliest possible juncture because, depending on the facts of a given case, they may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence. Thus, the following circumstances are included in the Orange List:
1. “The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration involving one of the parties, or an affiliate of one of the parties” (para 3.1.5); and
2. “The arbitrator has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties, or an affiliate of one of the parties” (para 3.1.3).

45. It is submitted that, although the Court of Appeal recognised the importance of disclosure, both as a matter of best practice and legal obligation, it undermined that recognition by giving insufficient weight to arbitrator M’s failure to make disclosure in this case. In particular, while the Court of Appeal found that the circumstances in the case at hand “might be cause for legitimate concern” in the eyes of the parties and therefore “ought, as a matter of law” to have been disclosed,⁴¹ and indeed that the non-disclosure of circumstances that ought to have been disclosed “inevitably” casts doubts on an arbitrator’s impartiality,⁴² it drew no consequences from the non-disclosure of such multiple appointments absent other factors.
46. In its published guidance to parties and arbitral tribunals, the ICC Court observes that, although a failure to disclose will be considered by the Court in assessing whether a challenge is well founded, such a failure in general “is not in itself a ground for disqualification”.⁴³ However, notwithstanding that general position, it is the ICC Court’s position that non-disclosure can be enough in itself to justify disqualification where it necessarily creates a situation of inequality between the parties. A failure to disclose multiple appointments concerning overlapping subject matter with only one common party is such a case.
47. Examples of that necessary inequality have been provided in paragraph 43 of the Appellant’s Written Case, with which the ICC respectfully concurs. As the Appellant has observed, arbitrations in London are private, so the common party and the common arbitrator will know what is happening (or has happened) in both arbitrations but, absent disclosure, it is necessarily the case that no-one else will. It is a notable feature of the present matter that the Appellant only learned of arbitrator M’s multiple appointment by pure happenstance. Absent such intervening chance to reveal what a non-disclosure would usually conceal, the non-common party will – unlike the common party –be deprived of the knowledge and opportunity to assess the implications of the multiple appointment with overlapping subject-matter. Moreover, the common party alone will be in a position to conduct itself in the arbitration in light of its awareness of the common arbitrator’s experience in the other related proceeding. These facts produce an inequality, the arbitrator has created that inequality by the non-disclosure, and therefore that non-disclosure can in itself justify disqualification.
48. The Court of Appeal appeared to attach significance to the “accidental” nature of arbitrator M’s non-disclosure in this particular case. By “accidental”, it appears that the Court of Appeal accepted that the arbitrator did not make disclosure because he did not consider at the time that he was under a duty to make disclosure. It is the ICC Court’s position that taking such a subjective factor into account undermines the pro-disclosure consensus that has rightly emerged in international arbitration. It will be rare indeed for an arbitrator deliberately to withhold disclosure that the arbitrator knows at the time should be made. It will be rarer still for a party to be able to prove that arbitrator’s state of mind. It is the fact of wrongful non-disclosure in breach of legal duty, not the arbitrator’s motivation, that should primarily determine the consequences.
49. In reaching the conclusion that the arbitrator should nevertheless not be disqualified because, in any event, the underlying circumstances were themselves not such as to justify a reasonable apprehension of bias, the Court of Appeal has undermined the duty to disclose, which extends more broadly to circumstances that may give rise to a reasonable apprehension of bias. Indeed, the Court of Appeal’s conclusion may encourage arbitrators – consciously or unconsciously – to see how a potentially disclosable circumstance develops without making disclosure given that, as English law presently stands, non-disclosure will not alter the outcome of a possible later challenge. Any such encouragement would threaten the very mechanism that the non-common party will rely on in order to assess whether the particular circumstances of a case are such as to give rise to an appearance of bias.
50. Without offering a view on whether the present challenge should be upheld, the ICC Court respectfully submits that the position under English law should rather be that a failure to disclose such a multiple appointment by a common party in overlapping references can, of itself, give rise to justifiable doubts as to the arbitrator’s impartiality.
51. Such a position will reinforce the imperative of disclosure, and will not result in any undue prejudice for the users of arbitration – including the users of specialist arbitral institutions, such as GAFTA or the LMAA. On the contrary, the only burden that would be created is that arbitrators should put themselves in a position to keep track of their past and present appointments so as to be able to make disclosures if they are warranted. This is neither a substantial nor unreasonable burden; indeed, it is good practice. Moreover, any perceived burden is outweighed by the considerable benefits of disclosure – both the practical benefits outlined above, but also the principled benefit of reinforcing confidence in the integrity of a dispositive process that involves parties having the opportunity to appoint an independent and impartial arbitrator.

The ICC Court’s Answer on Issue 2:

52. The ICC Court respectfully submits that the position under English law on Issue 2 should be that a failure to disclose multiple appointment by a common party in overlapping references can, of itself, give rise to justifiable doubts as to the arbitrator’s impartiality.

V. Conclusion

53. For the avoidance of doubt, the ICC Court does not express a view on the outcome of the challenge to the arbitrator on the particular facts of this case. Rather, for the foregoing reasons, the ICC Court respectfully requests that these submissions be taken into account in considering the issues raised by the present appeal.