Lloyd's Maritime and Commercial Law Quarterly
Arbitrators’ impartiality and English Law: is it time for a change?
Youseph Farah *
Leonardo VP de Oliveira †
The English Court employs the fair-minded observer to assess whether there was a real possibility that the arbitrator was biased. The House of Lords in Porter v Magill claimed that, by adopting the fair-minded observer test, the English test will conform with ECHR, Art.6. This article shows that the fair-minded observer may in fact struggle to conform to Art.6, and advocates that the reasonable person construct is better to achieve this objective. We show that, as a matter of principle and practice, there is no reason for England to adopt a test which diverges with international practice.
I. INTRODUCTION
In England, the impartiality test of arbitrators is drawn from the general test stated by Lord Goff of Chieveley in R v Gough,1 that is applicable to judges, jury members, adjudicators and public officials alike. In Porter
v
Magill,2 the House of Lords stipulated that the test of impartiality requires enquiry whether the circumstances of the case would lead a fair-minded and informed observer to conclude that there was a real possibility that the adjudicator was biased.3 In Halliburton
v
Chubb,4 The UK Supreme Court confirmed the application of this test to arbitrators. The “real possibility” element of the test, which concerns the threshold that must be met to show bias, has not been pivotal to the enquiry. In fact, in all the cases covered in this study, the courts ignored it. We posit that the more important and contentious question is which agent is responsible for assessing whether there is a “real possibility of bias”. English courts hand this responsibility to the fair-minded and well-informed observer—a legal construct with which neither the English legal system nor international practice is sufficiently familiar.
* Associate Professor in International Dispute Resolution, University of East Anglia.
† Senior Lecturer in Law, Royal Holloway, University of London.
1. In R v Gough [1993] AC 646, 670, Lord Goff of Chieveley stated: “I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators.”
2. Porter v Magill [2001] UKHL 67; [2002] 2 AC 357.
3. Ibid, [103], where Lord Hope of Craighead stated: “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’.”
4. Halliburton
Co
v Chubb
Bermuda Insurance Ltd [2020] UKSC 48; [2021] 1 Lloyd’s Rep 1; [2021] AC 1083.
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