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During an arbitration hearing the third arbitrator declined to recuse
himself because of a previous connection with a principal witness. The
respondents challenged the interim award in the claimant’s favour
on the basis that the third arbitrator should have recused himself on
the grounds of apparent bias. The Judge held that the third arbitrator
should have recused himself but dismissed the application on the basis
that the respondent had lost any right to object by taking up the interim
award. After that the third arbitrator withdrew from the reference.
The respondent took the view that the two remaining arbitrators had
aligned themselves with the third arbitrator’s position and should
not continue as part of a Tribunal of which one member had been found
by the Court to have had apparent bias and applied for an Order for
removal of the two remaining arbitrators.
The Court held that there was no invariable rule, and it was not the
case, that where one member of a Tribunal was tainted by apparent bias
the whole Tribunal was affected second hand by apparent bias and therefore
should recuse themselves, or should be excluded, from the proceedings.
The Court found on the facts of the case that a fair-minded and informed
observer would not conclude there was any real possibility that there
had been discussions between the third arbitrator and the two other
arbitrators that might improperly influence their assessment of the
principal witness’s evidence or detract from their impartiality.
In any event the respondent’s right to complain about the arbitrators
was limited by section 73 of the 1996 Arbitration Act because they continued
with the arbitration without objection.
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