14 November 2019
Overnight, the UK Supreme Court concluded hearing the oral arguments in the Deepwater Horizon appeal on the issue of whether an arbitrator must disclose his or her involvement in overlapping or related cases.
Earlier this year, US-based oil company Halliburton filed an appeal from the April 2018 decision made by the Court of Appeal in favour of UK-based Chubb Insurance (Chubb).
Intervening in the Supreme Court appeal is the ICC International Court of Arbitration (ICC), LCIA, Chartered Institute of Arbitrators (CIArb), London Maritime Arbitrators Association and the Grain and Feed Trade Association.
Halliburton and interveners the ICC, LCIA and CIArb advanced the arguments we foreshadowed in our earlier article on the appeal, available here.
Queen’s Counsel for the ICC submitted that the ICC, LCIA and CIArb had similar concerns with the Court of Appeal judgment. These concerns included the implications that the judgment would have on the area of perceived bias and therefore the integrity of, and global confidence in, arbitration.
Advancing the ICC’s position, it was submitted that disclosure is essential to preserve confidence in the arbitral system. Additionally, it was said that the international pro-disclosure consensus would considerably be weakened if the decision of the Court of Appeal was upheld, meaning that an arbitrator simply could rely on his or her ‘honest but wrongful conclusion that disclosure was unnecessary’.
Queen’s Counsel for Chubb submitted that Halliburton’s position on disclosure by the arbitrator had ‘no international support’, and that for the Supreme Court to decide in Halliburton’s favour could drive parties away from choosing arbitration in London.
The international arbitration community eagerly awaits the Supreme Court’s decision, which is expected within the next four to six weeks. This decision will be pivotal for the global arbitration community. Since the controversial decision of the Court of Appeal in this matter, there has been a heightened need for clarity on the test for apparent or perceived arbitrator bias, and a desire to ensure unequivocal integrity in arbitration.
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