198 NEWSLETTER 2021 Halliburton Decision on Apparent Bias: Violation without Consequences* Ayca Bengü Köksal Introduction The English Court of Appeal once reasoned, “Impartiality is the watchword of all tribunals, including arbitrators.”1 This is indeed true. Arbitrators’ independence and impartiality, both in connection with the parties and the dispute itself2, are fundamental to the arbitral process. These fundamental principles derive from a variety of sources, such as applicable national laws, institutional rules and arbitration agreements. Even the New York Convention indirectly addresses arbitrators’ obligation of independence and impartiality. Article V (1) (b) of the New York Convention provides for the non-recognition of awards where a party was denied the opportunity to be heard, which may stem from the conduct of a biased arbitral tribunal. Article V (2) (b) also provides for non-recognition of awards that violate public policy of the judicial enforcement forum, which may include local public policies against biased arbitrators.3 The United Kingdom (UK) Supreme Court readdressed this issue in its latest decision and decided upon the test to be applied to apparent bias for arbitrators. * Article of January, 2021 1 Amec Civil Eng’g Ltd. v. Secretary of State for Transp., 2005, English Court of Appeal. 2 Egilsdottir, Sigridur Maria: “Defining an Appropriate Threshold for Apparent Bias in International Arbitration: A Comparative Study”, Reykjavik University, June 2019, p. 19. 3 Egilsdottir, p. 20; Born, Gary: “Chapter 12: Selection, Challenge and Replacement of Arbitrators in International Arbitration”, International Commercial Arbitration (3rd ed.), p. 1761- 2104.
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