Allsop, Justice James --- "Independence and apparent bias: Judicial and arbitral confidence: Halliburton v Chubb" (FCA) [2022] FedJSchol 19

47 Time does not permit detailed examination of the reasons of Popplewell J or the Court of Appeal. Neither found a basis for apprehended bias, but the Court of Appeal said that Mr Rokison had failed to comply with a legal duty of disclosure.

48 The appeal to the Supreme Court by Halliburton attracted interventions by the LCIA, the ICC and CIArb that the Court of AppealaEURtms judgment was out of step with international standards in their discussion of multiple common appointments. Other interventions were made by LMAA,^[57] GAFTA^[58] and ARIAS (UK)^[59] which were anxious to see unimpaired the ability to appoint common arbitrators to chain or string, supply, transport, shipping and reinsurance arbitrations.

49 HalliburtonaEURtms case was one of unconscious apparent bias: in Mr Rokison taking the benefit of paid appointments in references 2 and 3, Mr Rokison gave Chubb an unfair advantage in being a common party in related arbitrations where (to the ignorance of Halliburton) he could be influenced by evidence and submissions in references 2 and 3 which could affect his approach in reference 1; Chubb would know of his responses to evidence and submissions in references 2 and 3, but Halliburton would not; the failure to disclose deprived Halliburton of forming its own view about the position; and Mr Rokison was said not to have paid proper regard to HalliburtonaEURtms interests in the fairness of procedure.

The duty of impartiality aEUR" discussion of principle^[60]

50 Lord Hodge applied in the arbitral context the relevant test for apparent bias in judicial proceedings taken from Porter v Magill^[61] and Helow v Secretary of State for the Home Department.^[62] Without going into detailed textual comparison (and, if I may say, rightly so), he said that the English common law test was aEURoesimilaraEUR to the test of aEURoejustifiable doubtsaEUR in the UNCITRAL Model Law.^[63]

51 This test was held to apply to judges and all arbitrators. However, the importance of the reasons of Lodge Hodge can be found in his LordshipaEURtms emphasis on context and his helpful discussion of the contextual differences between judicial and arbitral adjudication.^[64]

52 First, frank disclosure in arbitration is crucial because of the privacy of consensual arbitration. There may be no public record to which to have regard in evaluating an arbitrator, which makes it difficult or impossible for an arbitratoraEURtms participation in multiple references and the submissions and evidence led in them to be known by those not participating in those references.

53 Secondly, there is usually no appeal from an arbitral award, and there are very limited powers of review. Therefore, the choice of the arbitrator is of critical importance.

54 Thirdly, the judge holds public office and is paid by the state; the arbitrator is chosen by one or both parties or by an institution and is remunerated by the parties, and ultimately, by the losing party. An arbitrator in practice has an interest in future appointments. This may give rise to an interest in avoiding action that may alienate the parties, such as assertive case management.

55 Fourthly, there is a diverse range of persons who may be appointed as arbitrators, coming from many jurisdictions and different legal traditions, with potentially diverging views on ethically acceptable conduct.

56 Fifthly, and importantly, Lord Hodge recognised the differing understandings of the obligations of the party-appointed arbitrator. His Lordship referred to the aEURoelively debateaEUR as to the role of party-appointed arbitrators, referring to the articles and writings of Paulsson, van den Berg, Brower and Rosenberg, Born, and Redfern and Hunter, discussed above. Lord Hodge rejected the nuances involved in the debate: No allegiance or duty is owed; no representative role is undertaken. Once appointed, independence and impartiality are unqualified. ^[65]

57 Lord Hodge was expressly influenced by the place of London in arbitral adjudication, and the English legal systemaEURtms reputation for guaranteeing neutrality and impartiality.^[66] His Lordship drew from Chief Justice MenonaEURtms article that the requirement that all arbitrators had the same undifferentiated duty reflects an increasingly widespread legal norm. Whilst recognising that the view was not universal, and that some legal systems do accept that the party-appointed arbitrator has a special role in relation to his or her appointing party, this was not so in English law. So, in applying the relevant test, one does not have regard to the characteristics of the party including whether one or more was foreign.

58 The contrast in the approach in different legal systems was illuminated by the discussion of the 2018 Second Circuit decision in Certain LloydaEURtms Underwriters v Florida^[67] which expressly recognised a distinction between party-appointed arbitrators and aEURoeneutralaEUR arbitrators and that party-appointed arbitrators were expected to espouse the view of the appointing party and serve as de facto advocates.

59 Lord Hodge then sought to reconcile this international divergence in the perception of the role of party-appointed arbitrator in a subtle and important discussion of the attribution of knowledge to the human construct: The fair-minded and informed observer would be credited with the knowledge that some, perhaps many, parties and arbitrators have the view reflected in the Second CircuitaEURtms reasons, and that there is a debate within the arbitration community as to the role of the party-appointed arbitrator and the compatibility of that role with the requirement of impartiality.^[68] This was not to recognise a different obligation within the application of the test in England; rather, it is to understand the context in which the objective judgment (by the Court through the human construct) will be made.

The duty of disclosure: discussion of principle ^[69]

60 The Court of Appeal was, in Lord HodgeaEURtms view, correct to hold that there is a legal duty to disclose in English law. In arbitration, it arises from the obligation under the 1996 Act to act fairly and impartially, which gives rise to an implied term for the need to disclose matters.

61 To align or reconcile the duty to disclose with the duty of privacy and confidentiality, it becomes necessary to obtain the consent of relevant parties to disclosure, failing which consent the offered appointment must be declined. However, the context of particular trades or institutions (such as dealt with by the LMAA and GAFTA) may found an implied consent to multiple appointments. Importantly also, there was the recognition of the entitlement to disclose, confidentially, the existence of a current or past arbitration involving the common party and the identity of the common party, but not the identity of other parties without obtaining consent from all such parties. Such entitlement comes from common practice. Jurisprudentially this can be seen, as Lord Hodge said^[70], as the law recognising the realities of accepted and acceptable commercial and arbitral practice as a guide to the formulation of legal rules. Further, there was a public interest in upholding the integrity of arbitration as a system of dispute resolution calling for proper disclosure and calling for the giving of certainty to the legal standing of established arbitral practice.

62 Thus, at least in Bermuda Form arbitrations, an arbitrator may (subject to contrary agreement) make disclosure on a confidential basis of the existence of the arbitration and the identity of the common party without the express consent of other parties. Consent of the common party is inferred.

63 As to the content of the duty, Lord Hodge considered that with one qualification the duty as expressed by the Court of Appeal was correct:

64 The qualification of Lord Hodge was to what was aEURoeknownaEUR. Generally there is no duty to inquire; one must disclose what one knows. However, Lord Hodge would not rule out circumstances raising a duty to make reasonable inquiries, noting that the IBA Guidelines, Part 1, General Standard 7(d) provide for a duty to make reasonable inquiries.^[72] His Lordship thus left to future cases the development of the question by reference to arbitral practice and rules.

65 Lord Hodge then discussed the phrase aEURoewould or mightaEUR.^[73] Any obligation to disclose something that aEURoemightaEUR give rise to justifiable doubts can only arise, his Lordship said, where the matter might reasonably give rise to such doubts. Lord Hodge discussed the human contextual reality: the existence of matters that, if unexplained, would give rise to justifiable doubts, so the necessity to disclose and explain; or matters, more than trivial, which could, by themselves or with other facts, give rise to justifiable doubts, if later discovered. This analysis, necessarily less than precise, begins to explain the wider notion of disclosure and its relationship to the test for apparent bias, by reference to appropriate human conduct to maintain trust in the particular tribunal members and in the institution and process of arbitration as a whole.^[74]

66 As the discussion of Lord Hodge makes clear, the good sense of this approach comes from the consensual character of the process and the central value of party autonomy. It is the partiesaEURtm process. That is the attraction of arbitration: The existence of matters that might reasonably found a justifiable doubt as to impartiality, then or later, calls forth a sense of entitlement in the parties to know of the matter and to consider their positions for themselves. Reasonable minds can, and often do, differ about these sorts of questions. To recognise that and the policy of supporting trust and confidence in a consensual relationship built on party choice and autonomy justifies this wider penumbra of the obligation to disclose.

67 The development of English law to impose this duty was seen to be consistent with developments elsewhere.^[75]

68 Whilst the expression of the obligation under English law is not directed, as many arbitral rules are,^[76] to the perceptions of the parties, the distinction is unlikely to be sharp in practice. As expressed in summary form by Lord Hodge^[77] it is sufficient if matters are such that they are relevant and material to an assessment of the arbitratoraEURtms impartiality and could reasonably lead to such an adverse conclusion. In practice, and in the context of the reality of the parties before the arbitrator, it is difficult to see how the objectively perceived relevance to the parties is not central to the objective assessment by the fair-minded and informed observer.

69 The duty of disclosure is continuing and subject to changing circumstances.^[78] Its fulfilment is to be tested prospectively, and not retrospectively by reference to matters known later to the fair-minded and informed observer at the point of assessing bias.

70 However, the question of whether justifiable doubts exist is to be assessed by reference to the fact as they exist at the time of the application.^[79]

71 Against that detailed discussion, Lord Hodge concluded that Mr Rokison should have disclosed to Halliburton the multiple references, but that in all the circumstances, by the time the matter came before the Court, the fair-minded and informed observer would not reach a conclusion of apparent bias.^[80] Particular relevant circumstances to that evaluation included that Mr Rokison gave an explanation of his failure to disclose his appointments in references 2 and 3 which was accepted by HalliburtonaEURtms lawyers as a genuine oversight, Mr Rokison was of the view that there was no material overlap between the references and had offered to resign if the separate issues in references 2 and 3 did not dispose of those references, and Mr Rokison at all times adopted courteous and measured responses.^[81]

72 Where does all this leave us? Halliburton highlights, with clarity, the intimate relationship between the duties of impartiality and of disclosure. Parties are only equipped to make a judgment upon whether they are satisfied that an arbitrator is sufficiently impartial notwithstanding a potential lack of complete independence if they are aware of all of the relevant circumstances, including multiple or overlapping appointments.^[82] An explicit duty of disclosure is a necessary incident of the private and confidential nature of most arbitrations, which may prevent the parties from ascertaining a complete picture of the circumstances from their own inquiries alone. In what may be seen as a welcome development supporting the all-important trust of parties in the arbitral process, the legal obligation to disclose a wider range of matters than those which would found a conclusion of apparent bias can now be taken to be recognised not just in many arbitral institutional rules, but also by the common law of England.

73 Commentary on the Supreme CourtaEURtms decision has canvassed areas for further development of the common law of England with respect to disclosure and remaining issues for debate.^[83] That does not reveal an omission in the judgment. Rather, it reflects that decision-making, in the context of concrete problems rather than exhaustive rule-making, is the foundation of the common lawaEURtms support for honest good sense in commerce.

74 The emphasis (with respect, correctly) placed by Lord Hodge on context may contain the key for those in Australia who may have to determine, as a matter of statutory construction, whether there really is any practical difference (at least in likely result) between the Gough test introduced into Australian arbitration legislation, with or without its aEURoemodest adjustmentaEUR in Porter v Magill of a fair-minded and informed observer (bearing in mind Lord PhillipsaEURtm view as to the identity of aEURoereal possibilityaEUR and aEURoereal dangeraEUR, removing any connotation of the immediacy of the threat from the word aEURoedangeraEUR, and Lord HodgeaEURtms view of the aEURoesimilarityaEUR of the Model Law aEURoejustifiable doubtsaEUR to the English test) and the Australian judicial test if applied in the context of arbitral adjudication in the relevant field of commerce in which the arbitration takes place, and if firmly established.

75 An issue that is perhaps under-explored in the commentary to date is the impact of the decision on the position of the party-appointed arbitrator. I make several final observations in this regard.

76 First, English law has set its face against recognition of any form of special duty or role of a party-appointed arbitrator, or of the chair.

77 That said, secondly, there is a recognition of the legitimacy of other views and other approaches about this in other jurisdictions.

78 Thirdly, it is not clear how taking these matters into account as part of context in the appreciation of the fair-minded and informed observeraEURtms task will play out. That, perhaps, is only an aspect of the intensely factual and contextual nature of the relevant evaluation.

79 Fourthly, the use by Lord Hodge of the Second Circuit decision in the Florida case may not, with respect, fully deal with the subtleties involved. The American position, even after the change of the AAA/ABA Code of Ethics in 2004 towards recognition that all arbitrators should abide by the same formal ethical standards, is expressed, partly by reference to pre-2004 prevailing authority in the Supreme Court^[84] discussed in Florida, in language accepting the place of advocacy on the part of party-appointed arbitrator. The views of others as to the importance of the party having an impartial, but culturally and conceptually aware nominee, can be seen as more subtle than the American position. The confidence of parties in the arbitral process is crucial. That confidence is bolstered by an ultimate demand for honesty and impartiality; but it also may be seen to be bolstered by parties being happy with their informed choice of arbitrator to decide their dispute with the other sideaEURtms appointee and a chair chosen by them or appointed independently. There is already a qualification to independence: the arbitrator is chosen not imposed. But there need not, and should not, be a qualification to impartiality, unless the parties wish to choose a system and supervising court that finds impartiality to be legitimately qualified by a duty to advocate one sideaEURtms case.

80 Fifthly, whether one personally agrees with the views of Chief Justice Menon and Jan Paulsson, or with those of Gary Born, Raymond Bishop and Lucy Reed, may not matter. Different arbitral laws, statutory and general, may express themselves differently, as the Second Circuit and the Supreme Court did in Florida and Halliburton. This displays a choice that is given to parties and their advisors about the law of the arbitration and the seat. Parties can choose the approach they wish to have taken.

81 Sixthly, and finally, the debate about party-appointed arbitrators may underscore the distinction between institutional and ad hoc arbitration. A denial of the right of party-appointment would throw into high relief the need for integrity of the institution appointing the arbitration panel or the pool from which the panel is chosen. Reliance on the institution may simply push the relevant questions of independence, impartiality and disclosure further away from the knowledge of the parties and from the operation of party autonomy. Or, it may give institutions the opportunity to fashion bespoke solutions to any perceived problems of compromise of impartiality by party-appointment, such as by aEURoeblindaEUR appointments, where the arbitrators do not know whether they are party-appointed or not.

^[1] Chief Justice of the Federal Court of Australia. I am grateful to my associate Lucy Nason for her assistance in research and discussion in the preparation of this paper.

^[2] [2020] UKSC 48; [2021] AC 1083; See by way of commentary Charles Kimmins, Nigel Rawding, Luke Pearce and Olivia Valner, aEUR~The Test for Apparent Bias and ArbitratorsaEURtm Duties of Disclosure Following Halliburton v Chubb: Welcome Clarification, but Questions RemainaEURtm (2021) 38(3) Journal of International Arbitration 359 and Daze C Nga and Peace O Adeleye, aEUR~The English Supreme CourtaEURtms Decision in Halliburton v Chubb: An Examination of the Issues Arising from ArbitratorsaEURtm Acceptance of Multiple Appointments in Related Arbitrations and ArbitratoraEURtms Duty to DiscloseaEURtm (2022) 88(1) The International Journal of Arbitration, Mediation and Dispute Management 201.

^[3] aEURoeJurisdictionaEUR in the sense of the authority to decide.

^[4] Gary Born, International Commercial Arbitration (3^rd ed, Kluwer Law International, 2021), pp 1908-9 and footnote 857.

^[5] See Abaclat v. Argentina, Decision on the Proposal to Disqualify A Majority of the Tribunal in ICSID Case No. ARB/07/05 of 4 February 2014 at paragraph 75 as quoted in Born, International Commercial Arbitration, at footnote 857.

^[6] See the IBA Guidelines on Conflicts of Interest in International Arbitration (2014).

^[7] Also, guidelines can, by their length and any attempt at exhaustive listing, create uncertainty and confusion. Text has its limits as well as its strengths. Sometimes, the more guidelines, the more text, the more construction and interpretation, and the greater the degree of confusion or uncertainty. Cf W Ltd v M Sdn Bhd [2016] EWHC (Comm) 422 at [27]- [41] (Knowles J); I McGilchrist, The Master and his Emissary (Yale University Press, 2009); and J Allsop aEUR~Thinking about the Law: The importance of how we attend and of context (paper delivered to the Middle Temple, 18 July 2022).

^[8] UK Departmental Advisory Committee on Arbitration Law, Report on the Arbitration Bill (1996) at paragraphs 102-104. See also Born, International Commercial Arbitration, at 1909 and footnote 860.

^[9] Law Commission, Review of the Arbitration Act 1996: A consultation paper (Law Commission Consultation paper 257), September 2022 at [3.3]. I respectfully agree with Rozas that the distinction can be over-emphasised. FernA!ndez Rozas, aEUR~Clearer Ethics Guidelines and Comparative Standards for ArbitratorsaEURtm in M FernA!ndez-Ballesteros & D Arias (eds), Liber Amicorum Bernardo Cremades (2010) at 414, as quoted in Born, International Commercial Arbitration, at footnote 861

^[10] See, for example, Article 12 of the UNCITRAL Model Law 1985 with amendments as adopted in 2006; Article 11 of the UNCITRAL Arbitration Rules 2021; Article 11 of the ICC Arbitration Rules 2021; Article 5 of the LCIA Rules 2020; Article 11 of the HKIAC Administered Arbitration Rules 2018; Article 13 of the SIAC Rules 2016; Article 32 of the CIETAC Arbitration Rules 2015; Article 14 of the ICDR Rules 2021; Article 21 of the ACICA Rules 2021.

^[11] FowleraEURtms Dictionary of Modern English Usage (3^rd ed, Clarendon Press, 1996), 357-8.

^[12] Porter v Magill [2002] 2 AC 357 at 494 [103] (Lord Hope); Helow v Secretary of State for the Home Department [2008] 1WLR 2416 [1]-[3].

^[14] By the High Court of Australia in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 50 as noted by Lord Hope in Porter v Magill [2002] 2 AC 357 at 493 [100].

^[15] Porter v Magill [2002] 2 AC 357 at 494 [103].

^[16] This was the human construct preferred in Australia and elsewhere.

^[18] Director General of Fair Trading v Proprietary Association of Great Britain; Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at 726-727 [85].

^[19] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

^[20] See section 18A of the International Arbitration Act 1974 (Cth). All uniform Commercial Arbitration Acts in s 12 employ the language of the Commonwealth Act.

^[21] S Luttrell, Bias Challenges in International Commercial Arbitration: The Need For a aEURoeReal DangeraEUR Test (Kluwer, 2009) and N Brown and S Luttrell, Submission on the Review of the International Arbitration Act 1974 (Cth) at page 13 as referred to in D Jones and J Walker Commercial Arbitration in Australia (3^rd ed, Thomson Reuters) at 143-144 [5.220]).

^[22] Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 at [2] (Lord Hope); Harb v Aziz [2016] EWCA Civ 556 at [69].

^[23] Helow v Secretary of State for the Home Department [2008] UKHL 62; [2009] 2 All ER 1031 at [2]- [3] (Lord Hope).

^[24] Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 at [12]- [13]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [46]-[48].

^[25] See Allsop, aEUR~International Arbitration and Conformity with International Standards of Due Process and the Rule of LawaEURtm (Speech, XXIIIrd ICCA Congress, Mauritius, 10 May 2016) and Allsop and S Walpole, aEUR~International Commercial Dispute Resolution as a SystemaEURtm in S Menon and A Reyes (eds), Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic (forthcoming, Bloomsbury, 2023).

^[27] N Brown and S Luttrell, Submission on the Review of the International Arbitration Act 1974 (Cth) at page 12 as referred to in D Jones and J Walker Commercial Arbitration in Australia (3^rd ed, Thomson Reuters) at 143-144 [5.220]).

^[29] The word aEURoebiasaEUR is a loaded term, sometimes connoting ill-will. Its legal breadth, especially in its apprehended form, involves, as Deane J said in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 80, aEURoeprejudice, partiality or prejudgmentaEUR

^[30] See, for example, British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 cf [2009] NSWCA 414.

^[31] (I was tempted to remark on the appropriateness of dealing with subconscious bias in a footnote.) Unconscious bias refers to the influence of cognitive shortcuts or heuristics on how we perceive the world around us and make decisions. In its most objectionable form, unconscious bias can constitute subconscious favouritism towards or prejudice against people of a particular group that influences oneaEURtms actions or perceptions. For recent commentary see: Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich, aEUR~Blinking on the Bench: How Judges Decide CasesaEURtm (2007) 93 Cornell Law Review 101; Australian Law Reform Commission (ALRC), Without Fear or Favour: Judicial Impartiality and the Law on Bias (Report No 138), 2021; Edna Sussman, aEUR~Arbitrator Decision-Making: Unconscious Psychological Influences and What You Can Do About ThemaEURtm (2013) 24(3) The American Review of International Arbitration 487; Natalie Allen et al, aEURoeIf Everyone is Thinking Alike, Then No One is ThinkingaEURtm: The Importance of Cognitive Diversity in Arbitral Tribunals to Enhance the Quality of Arbitral Decision MakingaEURtm (2021) 38(5) Journal of International Arbitration 601; Stepan Puchkov, aEUR~Subconscious Bias as a Factor Influencing Arbitral Decision-MakingaEURtm (2018) 84(1) The International Journal of Arbitration, Mediation and Dispute Management 52.

^[32] According to the so-called aEUR~System 1aEURtm and aEUR~System 2aEURtm conceptualisation of the way humans process information (with aEUR~System 1aEURtm being constantly alert, fast and intuitive and aEUR~System 2aEURtm being slow, analytical and high effort), it is theorised that we fall into irrationality and unconscious bias when we fail to engage our System 2 thinking or where System 2 does not detect errors made by System 1. Intuitive, subconscious, System 1 judgments can stem from the influence of oneaEURtms cultural background, prior experiences and personal inclinations. There are also certain identifiable cognitive and heuristic errors often described as aEUR~blindersaEURtm that the processes of System 1 tend to produce, including the aEUR~confirmation blinderaEURtm (the tendency when one forms an initial view to interpret or even seek out subsequent information to support the initial view and disregard information that is inconsistent with it) and the aEUR~hindsight blinderaEURtm (the tendency to overestimate the probability that an event will occur after the fact). For the application of this theory to judicial and arbitral practice see, eg, Puchkov, aEUR~Subconscious Bias as a Factor Influencing Arbitral Decision-MakingaEURtm, 54-55; Sussman, aEUR~Arbitrator Decision-Making: Unconscious Psychological Influences and What You Can Do About ThemaEURtm at 495; Allen et al, aEUR~If Everyone is Thinking Alike, Then No One is ThinkingaEURtm, 609, 613-614; The Hon Justice K Mason AC, aEUR~Unconscious Judicial PrejudiceaEURtm (2001) 75 Australian Law Journal 676, 679-680 quoted in ALRC, Without Fear or Favour: Judicial Impartiality and the Law on Bias at [11.52].

^[33] Judges and arbitrators are not immune to the influence of unconscious bias, constrained as they are by the bounds of human rationality and fallibility. The fact that judges and arbitrators may be influenced by unconscious bias does not mean that a judge or arbitrator cannot be meaningfully impartial. Nonetheless, the potential for (potentially pernicious) unconscious prejudice to influence judges and arbitrators demands vigilance. The Australian Law Reform Commission suggested in its recent report on judicial impartiality and the law on bias in Australia that the potential operation of confirmation bias on the minds of judges is one reason why it may generally be appropriate for a judge to recuse himself or herself from hearing a case involving a person against whom he or she has previously made an adverse credibility finding. See Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press, 1921); Rebecca Helm, Andrew Wistrich & Jeffrey Rachlinski, aEUR~Are Arbitrators HumanaEURtm (2019) 13(4) Empirical Legal Studies 666; Allen et al, aEURoeIf Everyone is Thinking Alike, Then No One is ThinkingaEURtm, 610; ALRC, Without Fear or Favour: Judicial Impartiality and the Law on Bias at [2.61] 62, [4.26] 114 and [4.82] 133-134; Lord Neuberger, aEURoeJudge not, that ye be not judgedaEURtm: judging judicial decision-makingaEURtm (38^th F A Mann Lecture, London, 29 January 2015), [29].

^[34] See, eg, in a judicial context, GetSwift Ltd v Webb [2021] FCAFC 26; 283 FCR 328 and, in an arbitral context, Cofely Ltd v Bingham and another [2016] EWHC 240 (Comm).

^[35] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [69]- [70]

^[36] Rule 1 of the IBA Rules of Ethics for International Arbitrators 1987, entitled the aEURoeFundamental RuleaEUR is that aEURoearbitrators shall proceed diligently and efficiently to provide the parties with a just and effective resolution of their disputes, and shall be and shall remain free from biasaEUR.

^[37] Some institutional rules and arbitration laws contain general provisions mandating the independence and impartiality of arbitrators. For example, Article 5.3 of the LCIA Rules 2020 provides that aEURoeall arbitrators shall be and remain at all times impartial and independent of the partiesaEUR and Article 11(1) of the ICC Arbitration Rules 2021 provides that aEURoeevery arbitrator must be and must remain impartial and independent of the parties involved in the arbitration.aEUR See also s 33(1)(a) of the English Arbitration Act 1996 (which provides that the tribunal shall aEURoeact fairly and impartially as between the partiesaEUR|aEUR) and Article 11.1 of the HKIAC Administered Arbitration Rules 2018 (aEURoean arbitral tribunal confirmed under these Rules shall be and remain at all times impartial and independent of the partiesaEUR). The test for whether an arbitrator is independent and impartial is often expressed in the context of provisions concerning challenge to arbitrators. For example, Article 12 of the UNCITRAL Model Law 1985 (with amendments as adopted in 2006) provides that an arbitrator may be challenged if circumstances exist that aEURoegive rise to justifiable doubts as to his impartiality or independence.aEUR This formulation of the test is echoed in Article 12 of the UNCITRAL Arbitration Rules 2021, which provides: aEURoeany arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitratoraEURtms impartiality or independence.aEUR Section 24(1)(a) of the English Arbitration Act 1996 is similarly worded, providing that a party may apply to a court to remove an arbitrator where aEURoecircumstances exist that give rise to justifiable doubts as to his impartiality.aEUR The aEURoejustifiable doubtsaEUR formulation in provisions on challenge is also present in Article 11 of the HKIAC Administered Arbitration Rules 2018; Article 14 of the SIAC Rules 2016; Article 14 of the ICDR Rules 2021; and Article 21 of the ACICA Rules 2021. Some provisions on disclosure, however, go further. While Article 11 of the UNCITRAL Arbitration Rules 2021 provides that an arbitrator aEURoeshall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independenceaEUR, Articles 13.4 and 13.5 of the SIAC Rules 2016 provide that nominated arbitrators and arbitrators respectively must disclose aEURoeany circumstances that may give rise to justifiable doubts as to his impartiality or independenceaEUR (emphasis added).

^[38] Article 5.4 of the LCIA Rules 2020 provides that candidates for nomination as arbitrator must sign a declaration stating whether there are any circumstances aEURoewhich are likely to give rise in the mind of any party to any justifiable doubts as to his or her impartiality or independenceaEUR (emphasis added). Similarly, Article 11(2) of the ICC Arbitration Rules 2021 provides that prospective arbitrators shall disclose aEURoeany facts or circumstances which might be of such a nature as to call into question the arbitratoraEURtms independence in the eyes of the parties, as well as any circumstances that could give rise to the reasonable doubts as to the arbitratoraEURtms impartialityaEUR (emphasis added).

^[39] See, eg, Article 11.5 of the HKIAC Administered Arbitration Rules 2018; Article 14.6 of the SIAC Rules 2016; Article 14(6) of the ICDR Rules 2021 and Article 20.4 of the ACICA Rules 2021.

^[40] Formally different standards for party-appointed arbitrators are certainly the exception rather than the rule. See, for example, the LMAAaEURtms published guidance on the LMAA Terms 2021, which states that it is the duty of every member of an arbitral tribunal to attend to all matters with strict impartiality except in the rare case where the arbitration clause requires otherwise: LMAA, aEUR~Notes on London Arbitration and Frequently Asked QuestionsaEURtm, accessible at: https://lmaa.london/notes-on-london-arbitration/. As is well-known, the 1977 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes took the position that party-appointed arbitrators were permitted to be aEURoepre-disposedaEUR to their appointing partyaEURtms case. However, the revised version of the Code published in 2004 moved away from this standard, standing that it is aEURoepreferableaEUR for all arbitrators to abide by the same formal ethical standards. For a discussion of this shift see Alfonso Gomez-Acebo, Party-Appointed Arbitrators in International Commercial Arbitration (Kluwer Law International, 2016), 357.

^[41] Jan Paulsson, aEUR~Moral Hazard in International Dispute ResolutionaEURtm (2010) 25(2) ICSID Review aEUR" Foreign Investment Law Journal 339.

^[42] Raymond Doak Bishop and Lucy F Reed, aEUR~Practical Guidelines for Interviewing, Selecting and Challenging Party-Appointed Arbitrators in International Commercial ArbitrationaEURtm (1998) 14(4) Arbitration International 395, 404.

^[43] Ibid, 405. See also Nigel Blackaby and Constantine Partasides QC with Alan Redfern and Martin Hunter, Redfern and Hunter on International Commercial Arbitration (6^th ed, Oxford University Press, 2015) at [4.30], 239.

^[44] Blackaby, Partasides, Redfern and Hunter, Redfern and Hunter on International Commercial Arbitration at [4.30], 239.

^[45] Bishop and Reed, aEUR~Practical Guidelines for Interviewing, Selecting and Challenging Party-Appointed Arbitrators in International Commercial ArbitrationaEURtm, 405.

^[47] Antonino Albert de Fina described the role as aEURoedelicateaEUR: aEUR~The Party Appointed Arbitrator in International Arbitrations aEUR" Role and SelectionaEURtm (1999) 15(4) Arbitration International 381, 382.

^[48] Gomez-Acebo contends that the role of aEUR~cultural translatoraEURtm amounts to nothing more than carrying out oneaEURtms duties as an arbitrator diligently and that cultural misunderstandings where perceived ought be corrected regardless of whether the clarification aids the appointing partyaEURtms case. Further, he contends that accepting a particular role for the party-appointed arbitrator brings with it an unavoidable risk of imbalance between the parties because reasonable minds may differ on the content of that particular role, resulting, perhaps, in one partyaEURtms case receiving more time and care than anotheraEURtms. See Gomez-Acebo, Party-Appointed Arbitrators in International Commercial Arbitration, 103-106.

^[49] Sundaresh Menon, aEUR~Adjudicator, Advocate or Something in Between? Coming to Terms with the Role of the Party-Appointed ArbitratoraEURtm (2017) 34(3) Journal of International Arbitration 347, 363-364.

^[52] Born, International Commercial Arbitration, 1767, 1941-1946.

^[53] Empirical studies show that the ability for parties to have input into the composition of the tribunalaEURtms expertise and experience is perceived as a significant benefit of arbitration compared with litigation: Born, International Commercial Arbitration, 30.

^[54] Veeder describes party-appointed arbitrators as the aEURoehistorical keystoneaEUR of international arbitration, without which parties would not be (and historically would not have been) incentivised to arbitrate: V.V. Veeder, aEUR~The Historical Keystone to International Arbitration: The Party-Appointed Arbitrator from Miami to GenevaaEURtm (2013) Proceedings of the ASIL Annual Meeting, 107, 387, 401-402. Brower and Rosenberg contend that parties are more likely to hold confidence in an arbitral tribunal aEURoethat they themselves had a say in constitutingaEUR: Charles N Brower and Charles B Rosenberg, aEUR~The Death of the Two-Headed Nightingale: Why the Paulsson-van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is WrongheadedaEURtm (2013) 29(1) Arbitration International 7, 13.

^[55] Born, International Commercial Arbitration, 1767.

^[59] The Insurance and Reinsurance Arbitration Society (UK).

^[63] And also to the tests contained in the IBA Guidelines General Standard 2(c) and Article 10.1 of the LCIA Rules 2014.

^[65] Lord Hodge said at 1114 [63]: aEURoeNotwithstanding this perception of the reality in some quarters, a party-appointed arbitrator in English law is expected to come up to precisely the same high standards of fairness and impartiality as the person chairing the tribunal. Popplewell J correctly summarised the position in English law, and I would venture to say also in Scots law, when he stated in his judgment (para 19): aEURoethe duty to act independently and impartially involves arbitrators owing no allegiance to the party appointing them. Once appointed they are entirely independent of their appointing party and bound to conduct and decide the case fairly and impartially. They are not in any sense . . . a representative of the appointing party or in some way responsible for protecting or promoting that partyaEURtms interests.aEURaEUR

^[67] Certain Underwriting Members of Lloyds of London v Florida 892 F3d 501 (2^nd Cir 2018), importantly a decision under the Federal Arbitration Act 9 USCA 10(a)(2).

^[74] Lord Hodge noted the disagreement in major English texts on the subject: both Redfern and Hunter (Law and Practice of International Commercial Arbitration (6^th ed, 2015) at paras 4.79-4.80) and Merkin and Flannery (Merkin & Flannery on the Arbitration Act 1996 (6^th ed, 2019) at 286-287) expressing the views that an arbitrator should disclose on the aEURoecould reasonablyaEUR or aEURoewould or mightaEUR basis, whilst Russell (Russell on Arbitration (24^th ed, 2015) at para 4-131) restricted any legal obligation to disclose to the aEURoewouldaEUR basis. Like the Court of Appeal, Lord Hodge favoured the former rather than the latter that had been favoured by Popplewell J. It is at this point perhaps that one can see the difference between the Australian aEURoetwo mightsaEUR and the English would lead to a real possibility. Two mights (that is might lead to the real possibility) can be seen to circumscribe disclosure in England as wider than would lead to a real possibility. But again the potential aridity of such a linguistic debate is to be recognised: The two mights in the context of recusal in Australia is to be firmly established; and the might lead to a real possibility in England is assessed in the context of reasonably debatable disclosure.

^[75] Halliburton [2020] UKSC 48; [2021] AC 1083 at 1129-1130 [112]- [114], with Lord Hodge referring to Article 12 of the UNCITRAL Model Law and the laws of Scotland, Germany, Belgium, Sweden, Austria and Switzerland.

^[76] See the discussion and footnote references at paragraph [32] above.

^[79] Ibid at 1131-1132 [121]-[122]. See also R v Gough [1993] UKHL 1; [1993] AC 646 at 670 (the court must ascertain the relevant circumstances aEURoefrom the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant timeaEUR) and AT&T Corporation v Saudi Cable Co [2000] 2 LloydaEURtms Rep 127 at [42] per Lord Woolf (aEURoethe court considers on all the material which is placed before it whether there is any real danger of unconscious bias on the part of the decision makeraEUR) (emphasis added) and at [63] per Lord Potter (the courtaEURtms task embodies the standards of the informed observer viewing the matter at the relevant time, aEURoewhich is of course the time when the matter comes before the courtaEUR).

^[82] As recognised by the Law Commission in its recent paper published in connection with a review of the English Arbitration Act 1996: Law Commission, Review of the Arbitration Act 1996: A consultation paper (Law Commission Consultation paper 257), September 2022 at 20 [3.8].

^[83] Those issues include the extent of the duty of disclosure (is an arbitrator obliged to disclose only those matters of which he or she has knowledge, or must an arbitrator actively make inquiries?), and the extent to which the partiesaEURtm choice of a particular set of institutional rules to govern their arbitration may modify the common law position (for example, the potential application of more onerous disclosure requirements when doubts as to independence and impartiality are assessed from the perspective of the parties rather than an objective bystander, as is the case under the LCIA Rules 2020 and the ICC Arbitration Rules 2021). Commentary has also discussed a matter of particular relevance to arbitral practice: the relationship between potentially competing imperatives of disclosure and confidentiality and how compliance with those two duties may or should be achieved in non-Bermuda Form arbitrations, an issue left open in Halliburton. See Halliburton [2020] UKSC 48; [2021] AC 1083 at 1126 [105], 1127 [107], 1140 [153]-[154] (Lord Hodge) and 1141 [162] (Lady Arden); Kimmins et al, aEUR~The Test for Apparent Bias and ArbitratorsaEURtm Duties of Disclosure Following Halliburton v Chubb: Welcome Clarification, but Questions RemainaEURtm at 368-369 and 370-372; Nga and Adeleye, aEUR~The English Supreme CourtaEURtms Decision in Halliburton v Chubb: An Examination of the Issues Arising from ArbitratorsaEURtm Acceptance of Multiple Appointments in Related Arbitrations and ArbitratoraEURtms Duty to DiscloseaEURtm at 216-217; and Law Commission, Review of the Arbitration Act 1996: A Consultation paper at 26-27 [3.52]-[3.54].

^[84] Especially Commonwealth Coatings Corp v Continental Casualty Co [1969] USSC 31; 393 US 145 (1968).

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