Arbitration Links - Linklaters
  • Topic: Arbitral Tribunals

English Commercial Court rejects suggestion that appointment of an arbitrator in related arbitrations constitutes apparent bias

06 July 2017 Charlotte Luker-Coombs, England & Wales; Europe

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The recent case of H v L & Others [2017] EWHC (Comm) 137 confirms that the appointment of an arbitrator in related references (and his/her failure to disclose those appointments) will not of itself create an appearance of bias so as to justify his/her removal under s.24(1)(a) Arbitration Act 1996 (the “Act”). The judgment summarises the test for apparent bias in an English seated arbitration and emphasises the integrity and impartiality of arbitrators as a central tenet of the same.  Separately, Popplewell J has also confirmed that orders granted pursuant to powers under the Act cannot be varied under CPR 3.1(7).

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How to Prove Corruption – Notes from a panel discussion at the BIICL 28th Investment Treaty Forum

21 June 2017 Jessie Ingle

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On 12 May 2017, the British Institute of International and Comparative Law held its 28th Investment Treaty Forum with this year’s theme being ‘Economic Crime and International Investment Law’.

One particularly relevant panel discussion at the interface between the resolution of investment treaty disputes and the wider themes of the forum focused on ‘Evidentiary Challenges of Allegations of Economic Crimes in Investor-State Disputes’

In a sweeping majority of cases, the party alleging corruption is unable to substantiate that claim before the arbitral tribunal. The panellists explored the question of how arbitral tribunals in investment treaty disputes can best deal with allegations of corruption when a) such a crime typically involves very little evidence; b) that evidence that has been concealed; and c) the tribunal has no way of compelling the production of that evidence.

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English High Court rejects attempt to obtain disclosure from arbitrators in support of an application to remove them

18 May 2017 Adrien Canivet, England & Wales; Europe

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In P v. Q & Others [2017] EWHC 148 (Comm), a party to an arbitration sought an order, in support of its application to remove two arbitrators, that the tribunal disclose material to it. The High Court dismissed this request; it recognised that arbitrators’ adjudicative materials are, like judges’, immune from disclosure.  It also clarified the scope of that immunity.

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Southern District grants Section 1782 discovery for private commercial arbitration

23 January 2017 Patrick Ashby, North America; United States of America

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Private international arbitral bodies are considered foreign tribunals for the purpose of 28 U.S.C. §1782 (“Section 1782”), the United States statute that allows parties to obtain evidence in the U.S. for use in legal proceedings outside of the U.S., according to a recent decision by Judge Furman of the District Court for the Southern District of New York (“Southern District”).

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Who should know the law: the arbitrators or the parties?

03 October 2016 Cezary Wisniewski; Alicja Zielinska-Eisen, Europe; Poland

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What could be done at an early stage in the proceedings to apply the principle of iura novit curia in a way that would be acceptable to both common law and civil law practitioners and prevent or limit challenges to the arbitral award?

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