Bias of arbitrators: a critical analysis on the law post-Halliburton v. Chubb and a comparative approach

The principle of independence and impartiality has been formed, over the course of time, into a well-established and simultaneously into a fundamental duty of the arbitrator. However, the question, which arises, pertains to what kind of duty it is, namely either a legal duty or one resembling professional ethics. As the case is with judges, arbitrators also shall not be biased or even give the impression of being biased. Unlike judges, however, arbitrators are nominated by the parties to the arbitration and therefore, concerns with regards to possible bias or lack of impartiality are likely to be raised to a greater extent. The principal triptych, which overrides this multifaceted subject, concerns mainly questions of disclosure, repeat appointments and apparent bias. The arbitrator’s duty to remain unbiased and impartial is stipulated as a soft law rule in the IBA Guidelines of 2014, which serves as the point of reference and according to which there has to be an equilibrium between the principle of party autonomy and the tribunal’s independence. In the present paper, a critical analysis is conducted as to the formation of the landscape regarding arbitrator’s bias, before and after the landmark decision of the Supreme Court in Halliburton Co v Chubb Bermuda Insurance Ltd (2020) UKSC 48. The lessons to be learned from this judgment are comparatively assessed alongside the position of arbitration laws of England, India, and China, and by illustrating how the duty has been incorporated and appeared in arbitration practice through the lenses of the arbitration laws in each of the examined legal regimes. Resultantly, the Arbitration Act 1996, the Arbitration and Conciliation (Amendment) Act, 1996, the Chinese Arbitration Law as well as the China International Economic and Trade Arbitration Commission (CIETAC) Rules, which apply to foreign-related arbitrations, will be analyzed in conjunction with case-law in the above-mentioned jurisdictions