On 27 November 2020, the UK Supreme Court handed down its highly anticipated judgment in Halliburton Company v Chubb Bermuda Insurance Ltd. The case, which involved interventions from the ICC, LCIA and CIArb (among others), is significant as it clarifies the position in London-seated arbitrations as to the duty on arbitrators to disclose their appointments in separate arbitrations and the extent to which such appointments (and any non-disclosure) might support a challenge to their impartiality.
In summary, the Supreme Court confirmed that, as a matter of English law:
- accepting appointments in multiple arbitrations with overlapping subject matter may, in principle, give rise to justifiable doubts as to the arbitrator’s impartiality. However, it is an objective test that will depend on the facts that are known at the date of the hearing; and
- arbitrators have a legal duty (which is subject to their duty of confidentiality) to disclose matters which might give rise to justifiable doubts about their impartiality. Again, it is an objective test that will depend on the facts but is to be assessed at the time that the duty to disclose arises, rather than at the hearing.
In relation to both issues, the Supreme Court recognised that an objective assessment should reflect the varied customs and practices of parties to arbitration disputes, including that certain types of disputes (such as shipping and insurance) tend to have a smaller pool of recognised arbitrators from which the parties can choose.
In a unanimous decision, the Supreme Court dismissed the appeal. It held that the arbitrator (Mr Kenneth Rokison QC) had breached his duty of disclosure, but nevertheless this breach did not give rise to justifiable doubts as to his impartiality on the facts.