201 ARBITRATION LAW Arbitration, as well as institutional arbitrations, including the International Chamber of Commerce and the London Court of International Arbitration. The Supreme Court, however, noted that this duty must be balanced against the duty of confidentiality of the arbitrator by having express or inferred consent of the parties. This can be inferred from the arbitration rules, or from custom and practice. The Supreme Court found thatAwas under a legal duty to disclose to Halliburton his appointment in the subsequent arbitrations because at the time of A’s appointment in the second arbitration, the existence of potentially overlapping arbitrations with one common party might reasonably give rise to the real possibility of bias. Considering the fact that in the Bermuda Form arbitration, there was no established custom or practice for arbitrators to take on multiple appointments without disclosure and, therefore, A’s failure to disclose his subsequent appointments was a breach of his legal duty of disclosure.5 As for the second question, the Supreme Court held that “where an arbitrator accepts appointment in multiple references concerning the same or overlapping subject matter with only one common party, this may, depending on the relevant custom and practice, give rise to an appearance of bias.” The Supreme Court provided that in addressing an allegation of apparent bias in an English-seated arbitration, the English courts will apply the common law test for bias, which is an objective one, namely, “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” The Supreme Court emphasized that this common law test must be considered, together with the particular characteristics of the international arbitration, including its private nature, the limited rights of 5 Stacey, James/ Holland, Samantha: “Halliburton v Chubb- Supreme Court Clarifies English Rules on Apparent Bias of Arbitrators”, Slaughter and May, December 2020 (https://my.slaughterandmay.com/insights/client-publications/ halliburton-v-chubb-supreme-court-clarifies-english-rules-on-apparent-bias-ofarbitrators/).
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