A recent English High Court case* reaffirms the high threshold for showing that an arbitral tribunal has “gone so wrong in its conduct that justice cries out for it to be corrected”, such as to warrant intervention by the courts.
In the case, the unsuccessful party in an arbitration subject to the LMAA Terms alleged that the tribunal had demonstrated apparent bias in its procedural decisions given over the course of the arbitration proceedings.
Any such bias would, if established, amount to a breach of the tribunal’s obligation to act fairly and impartially between the parties, and separately a so-called serious irregularity, each under relevant provisions of the Arbitration Act 1996.
The particular grounds of challenge included the alleged repeated lack of candour by the successful party’s appointed arbitrator as to the extent of his relationship with that party’s lawyers – in short, the number of arbitral appointments that that arbitrator had received from these lawyers.
And – at least originally – an allegation that the tribunal had made numerous rulings adverse to the unsuccessful party without the provision of adequate reasons, resulting in the reference proceeding “with extreme haste”.
But ultimately the only ground relied upon was the first of these, other allegations being said to be made “by way of context”.
Having analysed the decisions made by the arbitration tribunal throughout the arbitration process, the judge was clear that it had “behaved throughout with nothing but impeccable fairness”.
On the remaining ground, namely the failure by the successful party’s appointed arbitrator to disclose the extent of his relationship with that party’s lawyers, the judge restated the established test, namely “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 judge was clear that this test had not been satisfied, noting that, at least in LMAA and GAFTA arbitrations, there was no duty on arbitrators to disclose repeat appointments by the same law firm in unrelated arbitrations, such repeat appointments being customary in arbitrations conducted under relevant rules and not automatically triggering any disclosure requirements.
* (1) V and (2) N v. K [2025] EWHC 1523 (Comm)
By Brian Perrot and Patrick Knox
Partner and Legal Director
