202 NEWSLETTER 2021 appeal, and the way in which arbitrators are appointed and remunerated.6 Upon reviewing the facts and the characteristic nature of the international arbitration, the Supreme Court concluded that the fairminded and informed observer would not infer real possibility of bias on the part of A on the following grounds: (i) the English case law did not have clarity as to whether there was a legal duty of disclosure and whether disclosure was needed; (ii) the time sequence of the arbitrations rendered A’s oversight genuine, meaning, since the reference in the second arbitration came six months after the reference in the first arbitration, it was more likely that Transocean would have cause for concern of bias, rather than Halliburton; (iii) A proposed to resign from the proceedings if the subsequent arbitrations were not resolved following determination of a preliminary issue, which meant that the evidence or the legal submissions in the overlapping arbitrations would not, in fact, coincide with one another; (iv) there were no questions of A having received any secret financial benefit; and (v) there was no basis of an “unconscious bias in the form of subconscious ill-will in response to the robustness of the challenge.” In brief, the Supreme Court decided that A breached his duty to disclose because there was in fact a real possibility that the tribunal was biased. That being said, the Supreme Court did not attach any consequences to this violation because of the common law test they applied for apparent bias of the arbitrators. Remarks and Conclusion The Halliburton decision has drawn a lot of criticism for applying an objective test for apparent bias rather than a subjective one. Given the fact that the institutional rules mostly refer to a subjective standard of possible bias from the eyes of the parties, the standard is considered beyond the scope of the common practices of international arbitration. It has also been criticized by not being particularly clear on the scope of disclosure and relied heavily on custom and practice, which leaves 6 Ross, Alisan: “UK Supreme Court dismisses appeal over apparent bias”, Global Arbitration Review, November 2020, https://globalarbitrationreview.com/uk-supreme-court-dismisses-appeal-over-apparent-bias.
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