The International Bar Association guidelines on conflicts of interest in international arbitration have also gained wide acceptance as establishing an international guideline for questions of bias, and Article 12 of the UNCITRAL Model Law has also received wide-ranging legislative approval. Section 24.1 of the English Arbitration Act). In arbitration, most institutional rules provide the institutions with the competence to decide on the removal of arbitrators (eg Article 12(2) of the UNCITRAL Model Law) and most national laws provide that a challenge to an arbitrator is within the competence of the supervisory national court of a seat (e.g. Under English law, the test for establishing bias is as set out in the 2002 decision in Porter v Magill – whether a "fair minded and informed observer", having considered the facts, would conclude that there was a "real possibility" of bias. As independence and a lack of bias are crucial requirements of any judge or arbitrator, it is interesting to note the different perspectives of courts and tribunals on this question. Experienced arbitrators with previous legal careers (or who are indeed still practising, unlike most judges) will have a wealth of relationships throughout the legal sphere. The benefits of greater party autonomy and flexibility make arbitration an appealing form of dispute resolution but, by providing a degree of choice in tribunal selection, the door is opened for questions of bias relating to these choices.įurther, given the relatively small pool of experienced international arbitrators, it can be hard to escape from relationships between arbitrators, parties, counsel, chambers, law firms and the like. In domestic court systems, judges are selected without input from the parties, whereas in arbitration the parties frequently have a say in which arbitrators are appointed. The approach taken in arbitration is often a contrasting one, and questions of bias are arguably approached from a more circumspect standpoint for a variety of reasons including the way in which the tribunal is appointed. The recent English High Court decision in (1) Zuma's Choice (2) Zoe Vanderbilt v Azumi Ltd, which held that the mere fact that a judge had decided an earlier application or issues adversely to a litigant was not generally a reason for that judge to recuse himself at further hearings, confirms the practical stance taken by the English courts. Despite this, the way courts and tribunals approach questions of actual and perceived bias are very different. Independence and the absence of bias on the part of decision-makers are seen as fundamental tenets of any adjudication process. Originally published in Corporate Dispute Resolution Magazine
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