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UK Supreme Court clarifies English law on arbitrators’ duties of impartiality, disclosure and confidentiality

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James Freeman

Partner

London

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Bianca Vasilache

Associate

London

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07 December 2020

In Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, the Supreme Court recognised for the first time that there is an ongoing, statutory duty in English law, which requires arbitrators to disclose facts or circumstances which would, or might reasonably, give rise to justifiable doubts as to their impartiality. That duty is, however, subject to an arbitrator’s duty of confidentiality in English-seated arbitral proceedings. 

The Court unanimously confirmed that, when considering whether justifiable doubts actually exist as to an arbitrator’s impartiality, the appropriate test to apply is whether the fair-minded and informed observer would conclude that there was a real possibility that the arbitrator was biased.  The application of this test will be highly fact-specific, however, and must take account of the distinctive features of international arbitration, including any customs and practices specific to the relevant field of arbitration.  

The Halliburton decision is the second from the Supreme Court in as many months dealing with arbitration and involving Chubb. Like the Enka case, which addressed the governing law of an arbitration agreement, Halliburton brings welcome clarity to the principles of English arbitration law but may lead to difficulties in practical application.

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