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Stockholm Arbitration Report (SAR)

Preview Page SAR 2003 - 2

Observations by William K. Slate II

SUBJECT-MATTERS:
(1) What constitutes bias on the part of an arbitrator?
(2) What constitutes misconduct on the part of an arbitrator?
(3) Whether an arbitral institution’s decision on a challenge of an arbitrator is final.
(4) Whether the arbitrator should be removed and awards set aside on ground of bias.

FINDINGS:
(1) When deciding whether bias has been established, the court personifies the reasonable man. The court considers on all the material which is placed before it whether there is any real danger of unconscious bias on the part of the decision maker. This is the case irrespective of whether it is a judge or an arbitrator who is the subject of the allegation of bias.
(2) The ICC Rules do not impose a wider obligation of disclosure than that relating to independence, thus not impartiality. The arbitrator’s non-executive directorship of a competitor company did not call in question his independence; and the main plank of the appellants’ case concerned the possible disclosure of confidential information to a non-executive director of a competitor, rather than the arbitrator’s independence.
(3) The finality provision in the ICC Rules does not mean that the English courts have no power to review the decision of the ICC Court. The finality provision does not operate to exclude the English court’s jurisdiction under s.23 of the 1950 Act. Thus, the English courts retain their jurisdiction to determine whether the
ICC Rules have been breached when entertaining an application to remove for alleged misconduct.
(4) Even if it were a procedural mishap it would be inappropriate in the circumstances of this case – the arbitration having reached the stage it has - to set aside the awards or to remove the arbitrator.