| ARBITRATION — Arbitrator — Removal — Dispute concerning charterparty referred to arbitration — One of three arbitrators recusing himself after finding of apparent bias — Whether remaining two arbitrators should also recuse themselves as being tainted by apparent bias of third arbitrator — Arbitration Act 1996, s 24
ASM Shipping Ltd of India v Harris & ors [2007] EWHC 1513 (Comm)
QBD: Andrew Smith J: 28 June 2007
Where one member of a tribunal was tainted by apparent bias it did not necessarily follow that the remaining members of the panel were thereby affected.
Andrew Smith J so held when dismissing the claim of the claimant, ASM Shipping Ltd of India, under s 24 of the Arbitration Act 1996 for an order for the removal of the first and second defendants, Mr Bruce Harris and Mr A G Scott, two arbitrators, on the grounds that circumstances existed that gave rise to justifiable doubts about their impartiality, in a reference of a dispute concerning a charterparty between ASM Shipping of India, the owners, and the third defendant, TTMI Shipping Ltd of England, the charterers.
During the course of the arbitration ASM Shipping had made an application under s68 of the Arbitration Act 1996 to have an interim award set aside on the grounds that the third arbitrator, Mr Duncan Matthews QC, should have recused himself because of apparent bias. Morison J had refused to set aside the award but had directed that Mr Matthews should recuse himself on grounds of apparent bias: ASM Shipping Ltd of India v TTMI Ltd of England [2006] 2 All ER (Comm) 122. This he had done. ASM Shipping then made their claim under s 24 of the 1996 Act for the removal of Mr Harris and Mr Scott. It was not suggested that Mr Harris or Mr Scott had been guilty of any sort of improper or unprofessional conduct, only that they had been tainted with the apparent bias of Mr Matthews. TTMI Shipping Ltd opposed the claim.
ANDREW SMITH J said that there was not an invariable rule, nor was it necessarily the case that where one member of a tribunal was tainted by apparent bias the whole tribunal was affected second-hand by apparent bias and therefore should recuse themselves or should be excluded from the proceedings. This was not to say that it was irrelevant to the question of bias that the remaining arbitrators would have had discussions with the third arbitrator, however it did not follow as a matter of law from the finding of apparent bias against one arbitrator that the whole of the original arbitral tribunal and each member of it were tainted by apparent bias. The enquiry would depend on the particular facts of the case. Circumstances did not exist that gave rise to justifiable doubts as to the impartiality of Mr Harris and Mr Scott or either of them and the court had no jurisdiction on that or any other basis to remove either of them under s 24 of the 1996 Act. |
Appearances: Sarosh Zaiwalla, solicitor, and Kumarlo Menns, solicitor (Zaiwalla & Co) for the claimant; Simon Croall (Waterson Hicks) for TTMI Shipping Ltd of England; the two remaining arbitrators did not appear and were not represented but wrote a letter to the court.
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