Factual and Procedural Background
This opinion concerns an application under the Arbitration Act 1996 to remove an arbitrator appointed by one party on the ground that another barrister from the same chambers has been instructed in the arbitration by that party. The arbitration arises from a dispute between Company A (the claimant in arbitration) and Plaintiff (the respondent in arbitration) concerning maintenance services performed on Plaintiff's aircraft. The arbitration is governed by an IATA arbitration clause allowing the tribunal to determine procedural and substantive law issues. Company A appointed a barrister, Judge Burnton, as arbitrator. At that time, Mr Sullivan, a barrister from the same chambers as Judge Burnton, was already instructed by Plaintiff in the dispute.
Concerns were raised by Plaintiff's US attorneys about the impartiality of Judge Burnton due to his chambers connection with Mr Sullivan. Plaintiff requested Judge Burnton's resignation, which he declined unless both parties agreed. Plaintiff then applied to the court for Judge Burnton's removal on grounds of justifiable doubts as to impartiality under section 24(1)(a) of the Arbitration Act 1996. The application was supported by an affidavit from Plaintiff's president expressing concerns about potential conflicts of interest, risk of information leakage, and familiarity between the barristers.
Company A and Judge Burnton responded with affidavits denying any actual or justifiable doubts about impartiality. The Commercial Bar Association and the Bar Council were permitted to make submissions on the public interest issues raised by the case. Plaintiff did not appear at the hearing, and the court dismissed the application with costs.
Legal Issues Presented
- Whether circumstances exist that give rise to justifiable doubts as to the impartiality of an arbitrator appointed by one party when another barrister from the same chambers is instructed by that party in the arbitration.
- Whether membership of the same chambers by an arbitrator and counsel for a party creates a conflict of interest or appearance of bias sufficient to warrant removal under section 24(1)(a) of the Arbitration Act 1996.
- The extent to which the principles of apparent bias and nemo judex in sua causa apply to arbitrators in such circumstances.
Arguments of the Parties
Appellant's Arguments (Plaintiff)
- There is an inherent conflict of interest between the arbitrator and counsel from the same chambers, preventing impartiality.
- There is a real risk that confidential information may be transmitted between the arbitrator and counsel due to shared chambers facilities and lack of effective "Chinese walls".
- The arbitrator's judgment may be influenced or "coloured" by familiarity with counsel from the same chambers.
- From an American legal perspective, such a situation would be impermissible and undermine confidence in the tribunal's impartiality.
Respondent's Arguments (Company A and Judge Burnton)
- Barristers are self-employed individuals who share premises and administrative expenses but not income or profits, maintaining professional independence.
- There is no actual bias or financial interest affecting impartiality.
- Practical arrangements in chambers prevent any improper transmission of confidential information, supported by evidence of separate offices, clerks, and document storage.
- Familiarity between barristers in the same chambers is common and does not constitute a conflict of interest or justify doubts about impartiality.
- Precedent and professional practice support that membership of the same chambers does not disqualify a barrister from acting as arbitrator when counsel from the same chambers appears for a party.
- The application should be dismissed because Plaintiff failed to maintain it by non-appearance and did not demonstrate justifiable doubts about impartiality.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. Gough [1993] AC 646 |
Test for apparent bias: whether there is a real danger of bias. |
The court applied the test in assessing justifiable doubts as to impartiality under section 24(1)(a). |
| R v. Bow Street Magistrate, ex parte Pinochet (No 2) [1999] 2 WLR 272 |
Importance of justice being seen to be done; no one should be judge in their own cause. |
Used to confirm principles underpinning removal of arbitrators for bias or appearance of bias. |
| Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 |
Justice must manifestly and undoubtedly be seen to be done. |
Reinforced the principle that appearance of bias is sufficient for disqualification. |
| Pilkington plc v. PPG Industries Inc (unreported, 1 November 1989) |
Shared chambers membership does not affect arbitrator's impartiality or justify removal. |
Cited as authority rejecting appearance of partiality due to chambers connection. |
| Nye Saunders and Partners v. Alan E Bristow (1987) 37 BLR 92 |
Appearance of bias due to shared chambers membership is insufficient without evidence of actual bias. |
Applied to reject challenge based on suspicion and lack of evidence of impropriety. |
| Prince Jefri Bolkiah v. KPMG [1999] 2 WLR 215 |
Risk of disclosure of confidential information must be real, not fanciful or theoretical, to warrant intervention. |
Used to assess the risk of information leakage between barristers in the same chambers. |
| KFTCIC v. Icori Estero Spa (Paris Court of Appeal, 29 June 1991) |
Membership of the same chambers does not create dependence or affect arbitrator's independence or impartiality. |
Foreign authority supporting the view that barristers' shared chambers do not disqualify arbitrators. |
Court's Reasoning and Analysis
The court began by identifying the statutory test under section 24(1)(a) of the Arbitration Act 1996, which requires the existence of circumstances giving rise to justifiable doubts as to an arbitrator's impartiality. The test is objective and reflects established common law principles on bias, including the need to avoid actual bias, the principle nemo judex in sua causa, and the test for apparent bias as set out in R v. Gough.
The court found no allegation or evidence of actual bias against Judge Burnton, nor was the principle of being a judge in one's own cause applicable, as knowing counsel from the same chambers does not equate to judging one's own cause.
The court considered the arguments based on apparent bias and the risk of conflict of interest arising from shared chambers membership. It relied on authoritative English and foreign decisions, including the Paris court of appeal and LCIA tribunal rulings, which consistently held that barristers practicing independently within the same chambers do not create justifiable doubts about impartiality.
The court rejected the submission that shared administrative arrangements or social familiarity amounted to a conflict of interest or risk of information leakage sufficient to undermine impartiality. It emphasized the self-employed status of barristers, professional rules prohibiting partnerships, and the absence of any known incidents of confidentiality breaches within chambers.
Applying these principles, the court concluded that Plaintiff had not demonstrated a real or justifiable risk of bias or partiality. The risk of accidental or improper disclosure of confidential information was deemed theoretical and fanciful. Familiarity between barristers was considered a normal feature of the profession and not a ground for disqualification.
Finally, the court noted Plaintiff's failure to appear and maintain the application, effectively amounting to withdrawal, justifying dismissal of the application with costs.
Holding and Implications
The court's final decision was to DISMISS the application to remove the arbitrator, Judge Burnton, on the grounds that Plaintiff failed to establish justifiable doubts as to impartiality under section 24(1)(a) of the Arbitration Act 1996 and failed to maintain the application by non-appearance.
The decision confirms that membership of the same chambers by an arbitrator and counsel for a party does not, in itself, create a conflict of interest or appearance of bias sufficient to warrant removal. This preserves the established practice of self-employed barristers sharing chambers while maintaining professional independence and impartiality in arbitration and judicial roles.
No new legal precedent was established; rather, the court affirmed existing principles governing arbitrator impartiality and the professional independence of barristers within chambers.