The Restrictions on Multiple Arbitral Appointments under English Law
Christopher Hancock KC & Daniel Bovensiepen
This article examines the particular issues raised by requests to accept, and acceptance of, multiple appointments by arbitrators, from the perspective of English law. Two main problematic circumstances are identified and addressed: (1) appointments in multiple references with a common party and the same or overlapping subject matters; and (2) multiple appointments by the same party or law firm. The article considers whether the existing provisions of the Arbitration Act 1996 and English law provide an adequate response to the difficulties which can arise. It further analyses English law in relation to appointments in arbitrations with overlapping subject matters, primarily by reference to the recent leading Supreme Court decision in Halliburton Co v Chubb Bermuda Insurance Ltd ("Halliburton").1 The effect of Halliburton in relation to disclosure by arbitrators, and the test for apparent bias, is evaluated, and remaining areas for debate and legal development are identified. In relation to multiple appointments by the same party or law firm, the article identifies that the nuanced Halliburton approach is still applicable, so there is no fixed list of the circumstances in which arbitrators should reject appointments or resign. Nevertheless, the article discusses the useful guidance that can be derived from English case law, and the key IBA and ICC publications. It concludes that whilst Halliburton has provided welcome confirmation or clarification of key principles, the decision itself turned on its own narrow facts. Issues of disclosure and apparent bias in the context of multiple arbitral appointments are highly fact and context sensitive, so arbitrators and parties will continue to be faced with many practical problems to which the correct solution is not obvious. Much room is still left for future development of English law in this area, as further cases on different facts emerge.