International community “will see Halliburton ruling as protecting Bar”

Newing: Ruling may damage confidence

The Supreme Court’s decision not to remove a QC from an arbitration will reinforce the international perception that members of the English Bar are being protected, a solicitor has claimed.

On Friday, the justices upheld the lower court rulings that Kenneth Rokison QC’s failure to disclose subsequent related arbitration appointments after being appointed to chair an arbitration arising from the Deepwater Horizon water spill did not indicate unconscious bias.

Neil Newing, counsel and specialist international arbitration lawyer at City firm Signature Litigation, said many in the global international arbitration community saw the previous decisions in this case as being made “to protect those members of the English Bar who have made a living from accepting the type of repeat appointments at issue in this case, in niche areas such as shipping and insurance”.

He went on: “The Supreme Court’s decision is, unfortunately, unlikely to change that perception. While the Supreme Court has importantly confirmed the arbitrator’s duty of disclosure, nonetheless in dismissing the appeal and thereby permitting the continue practice of multiple/repeat appointments, it has departed from the position that one would encounter before leading arbitral institutions – such as the International Chamber of Commerce and the London Court of International Arbitration – and which international users of arbitration may expect to find in a modern arbitration jurisdiction.

“While this may be a relief to some members of the English Bar, it may adversely affect the confidence of the global community in England and Wales as a seat for arbitration.”

Mr Newing said that, with the use of arbitration on the rise, particularly in the light of challenges that may be faced in enforcing court judgments abroad following Brexit, it was “disappointing that the Supreme Court has not taken this opportunity to bring the English courts into line with international best practice” and cement England and Wales’ position as one of the foremost jurisdictions for arbitration.

Tom Cummins, a partner at City firm Ashurst, said the ruling provided “much-needed guidance and clarity” on the issue of apparent bias in the context of multiple appointments of an arbitrator.

By making clear that the particular practices of different fields of arbitration should be taken into account in determining what would also be a fact-specific question, he said “the court has left space for development of the law, potentially in different directions dependent on whether the relevant arbitration is a commercial, insurance, commodity, shipping or trade arbitration”.

Leigh Crestohl, partner and head of the international arbitration practice at City firm Zaiwalla & Co, said that it remained true that the English courts were reluctant to intervene in arbitration cases.

“It will take some time before the practical effect of this guidance is known, including the impact, if any, on London’s position as a premier venue for the resolution of international disputes, which may assume even greater importance post-Brexit.”

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