“(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court— (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).”
“(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant— (a) failure by the tribunal to comply with section 33 (general duty of tribunal).”
“(1) The tribunal shall— (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.”
“We would also respectfully ask the arbitrators to complete the Tribunal by appointment of the third arbitrator before proceeding any further in this reference. In any case as this is a holiday period and the undersigned is away this arbitration might well be suited to remain on ice until10th September 2023 . Finally as the origin of this dispute involves a large professional negligence claim against solicitors Reed Smith we feel compelled to ask [Mr. H] to disclose all his previous connections, if any, with Reed Smith or Mr. Weller personally. Many thanks.”
“57.1 On18 August 2023 , K sought a direction for the LMAA Questionnaire (“LMAAQ”) to be exchanged by no later than1 September 2023 (the original deadline having fallen in August, when the Claimants’ key solicitors were travelling. The Claimants requested that no order be made given the complex background to the claim and noting out that there was no urgency for matters to proceed at pace. 57.2 On Tuesday,5 September 2023 , though it accepted there was no urgency or haste, the Tribunal nonetheless accepted K’s request and ordered the exchange of LMAAQs by10 September 2023 (which was a Sunday). The Tribunal’s order therefore gave the Claimants only 3 business days to prepare and exchange their LMAAQ.”
“For the above reasons, it is clear that the Tribunal has misdirected itself. The proper course is for the Tribunal now to step down, or alternatively in the interest of fairness and justice stay the arbitration pending the trial of the relevant issues by the High Court in the proceedings commenced by the Respondents against Reed Smith on the basis of the negligence we describe above.”
“The [Claimants] maintain their position that Reed Smith is in an ‘own interest’ conflict and cannot properly continue to represent [K] in this Arbitration. Indeed the continued involvement of Reed Smith as legal representatives has serious consequences as regards the fairness and procedural regularity of the proceedings, as to which all of the Respondents’ rights are reserved. Notwithstanding the foregoing, since the conflict of Reed Smith has now been brought to the attention of the Tribunal, the [Claimants] are content for the proposed amendment to paragraph 10 of the Defence to be removed The Reed Smith “own interest” conflict allegation. . The [Claimants] have taken this position not as any admission that it was inappropriate to have sought to make such an amendment but rather in the interests of minimising costs through argument on the point.”
“For all the foregoing reasons, the Tribunal rejects the [Claimants]’ case that [K] was not entitled to terminate the MOA because of the Freezing Decision. Irrespective of what capacity Reed Smith was acting in when it sent the Freezing Decision email, and of what, if any, action Barclays took on or following receipt of that email, [K] was entitled to terminate the MOA pursuant to clause 19 thereof on30 September 2022 , by reason of the designation of [V] as an SDN, and the consequent imposition on [V] of secondary sanctions, on29 September 2022 . It was that designation of [V] that caused the transaction to fail, not the Freezing Decision.”
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
“As GAFTA and LMAA have shown, it is an accepted feature of their arbitrations that arbitrators will act in multiple arbitrations, often arising out of the same events. Parties which refer their disputes to their arbitrations are taken to accede to this practice and to accept that such involvement by their arbitrators does not call into question their fairness or impartiality. In the absence of a requirement of disclosure of such multiple arbitrations, the question of the relationship between such disclosure and the duty of privacy and confidentiality does not arise.”
“The objective observer will appreciate that there are differences between, on the one hand, arbitrations, in which there is an established expectation that a person before accepting an offer of appointment in a reference will disclose earlier relevant appointments to the parties and is expected similarly to disclose subsequent appointments occurring in the course of a reference, and, on the other hand, arbitrations in which, as a result of relevant custom and practice in an industry, those expectations would not normally arise. The objective observer will consider whether in the circumstances of the arbitration in question it would be reasonable to expect the arbitrator not to have the knowledge or connection with the common party which the multiple references would give him or her… Mr. Constantine Partasides QC, who appears on behalf of ICC, represents to the court that such interrelated arbitrations are not common in ICC arbitrations and therefore such circumstances may more readily give rise to an appearance of bias. GAFTA and LMAA explain that multiple appointments are common in their fields of operation, see paras 43 and 44 above.”
“LMAA similarly explains that multiple appointments are relatively common under their procedures because they frequently arise out of the same incident. Speed and simplicity are necessary because of the tight limitation periods in maritime claims. There is a relatively small pool of specialist arbitrators whom parties use repeatedly. LMAA terms give arbitral tribunals the power to order concurrent hearings where two or more arbitrations raise common issues of fact or law without requiring the consent of the parties. Disclosure of multiple appointments should be required only when it is arguable that the matters to be disclosed give rise to the appearance of bias. LMAA points out that the IBA Guidelines recognise that in certain types of arbitration no disclosure of multiple appointments is required if parties are familiar with such custom and practice…”
“Unlike in GAFTA and LMAA arbitrations, it has not been shown that there is an established custom or practice in Bermuda Form arbitrations by which parties have accepted that an arbitrator may take on such multiple appointments without disclosure.”
“Dear [Mr. H], You will see from our e-mail to [Mr. B] yesterday we have taken the liberty of requesting you to disclose all your previous and recent connections with the firm, Reed Smith, and whether you have had any oral conversations or personal contact with Mr. Weller relating to this matter. We make this request particularly in light of Mr. Weller's aggressive correspondence which we have been receiving for some time now, the cause of which possibly reflects that Reed Smith has been informed by our client that it is pursuing a negligence claim pursuant to the advice we have received from counsel…. In the above circumstances we sincerely trust that you will understand our request and, in keeping with your professional duty of candour, you will revert to us.”
“whether you have had any oral conversations or personal contact with Mr. Weller relating to this matter” and “we make this request particularly in light of Mr. Weller’s aggressive correspondence… the cause of which possibly reflects that Reed Smith has been informed by our client that it is pursuing a negligence claim [against it]”
“For the whole of my career at the English bar, since 1987, I have had professional involvement with both Zaiwalla & Co and Reed Smith (formerly Richards Butler), as barrister, arbitrator and judge. This has included professional involvement with both Mr. Zaiwalla and Mr. Weller. I am not currently retained by either firm, nor am I sitting as arbitrator or judge in any dispute in which either firm is a party. As regards this arbitral reference under the LMAA Terms 2021, I can confirm that I have had no oral conversations or personal contact with Mr. Weller.”
“Your email below confirms the high standard which you hold. This is not at all surprising for me as my firm and I indeed have had a longstanding good relationship with [your chambers], the first occasion being around 48 years ago with John Hobhouse when I was training at Stacken & Co. As it happens, I mention in my book 'Honour Bound' published by Harper Collins, the names of John Hobhouse, Adrian Hamilton, and Michael Dean from your chambers in a complimentary manner. I can now confirm the withdrawal of my request for a third arbitrator at this stage. My firm will leave the decision to [Mr. B] and your good self”
“Dear [Mr. H], You will recall that by your email of20 August 2023 , you had mentioned that you had professional involvement with our firm and “both Mr. Zaiwalla and Mr. Weller”
“So far as professional instructions are concerned, my recollection is that I was instructed by your firm in about 1987 to assist my Head of Chambers …. I specifically recall meeting Mr. Zaiwalla personally in that context. I have no personal records that date back to 1987 and my clerks have checked the chambers’ financial records. My clerks are obliged under the UK Data Protection Regulation to anonymise information from financial records when it is no longer needed. There are some financial records dating back to 1985, but these early records are incomplete and do not include cases which were recorded on what were referred to as “case cards”
“In answer to your final question, my clerks have informed me that, in my capacity as barrister, I have been instructed by Mr. Weller or members of his department once, in 2014 (total fees earned -£3,900 ); and between 2008 and the present, I have been appointed arbitrator on 8 occasions (excluding the current reference). Four did not progress beyond appointment, in two there was minimal additional involvement (total fees£1,250 and£872.50 ) and two progressed to awards, where my total fees were£14,900 (appointment in 2008) and£26,175.00 (appointment in 2017).”
“We have not, in the light of my very considerable experience as an arbitrator in LMAA, ICC, LCIA, UNCITRAL and other arbitrations, acted with undue haste, nor have we consistently made one-sided decisions as you have suggested. To the contrary we have considered each application before us on its merits, independently and without favouring either side. The fact that we have made decisions with which one or other side has disagreed is of course no indication of bias, conscious or unconscious and as you are aware the [Defendant] as well as the [Claimants] have been the recipient of adverse procedural decisions. If our approach has been more “formal” than that common in at least some LMAA arbitrations, it is a function of the nature and seriousness of the issues raised, as we made clear in early correspondence, and as has proved to be more than amply justified as the case has developed.”
“If there was any substance to your firm's allegations of bias, then, as has been pointed out, your clients’ remedy lay in an application undersection 24 of the Arbitration Act 1996 . Yet despite your firm’s having informed us, on the30 January 2024 , that instructions had been received to seek the advice of leading counsel on making a section 24 application, no such application has been made. On the contrary, your clients have apparently embarked on a course of non-participation for which we can see no factual or legal justification.”
“For this purpose, we would request each of you individually to kindly disclose any past and present connection, personal or otherwise (including number of times instructed as counsel or appointed as arbitrator) with Reed Smith, Mr. Weller or any other partners of Reed Smith, giving full details. Need we say, we expect you to each frankly state your connection, including, any personal or social connection with Mr. Weller, or any other Partners of Reed Smith.”
“So far as I can recall I have had no personal or social contact with any partner of Reed Smith (including Mr. Weller) in the last five years. (I have taken the period of five years to be conservative, three being the more normal period of reference.) During this period, I have not been retained as counsel by any partner of Reed Smith. According to my clerks, who retain these records, I have received 88 appointments as arbitrator during this period, of which 14 were appointments by Reed Smith (about 16%). Most of these appointments have been in LMAA arbitrations – a field of arbitration which has its own particular characteristics, circumstances, customs and practices – although I have also had 2 LCIA and 1 ICC appointment. The ICC arbitration and most of the LMAA arbitrations never proceeded beyond appointment. I suspect that, like many of my arbitral appointments, the appointment was made to prevent claims becoming time barred. Two LMAA arbitrations are still active. The proportion of my income as an arbitrator during this period which relates to appointments by Reed Smith is about 8% (of which the [K] arbitration accounts for about 37%).”
“This advice is intended for arbitrators conducting maritime arbitrations, or accepting appointments as arbitrator, on terms of the London Maritime Arbitrators Association. The advice draws in part on the IBA Guidelines on Conflicts of Interest in International Arbitration published in February 2024, but reflects the recognised fact that in maritime arbitration, arbitrators are drawn largely from a specialised pool of individuals and the number of specialised law firms and other representatives internationally who appoint arbitrators is relatively small. Consequently, there is a custom or practice for parties or their representatives to frequently appoint the same arbitrator in different cases.”
“It has been suggested that the frequent appointment of arbitrators on different cases by the same appointing person, party or entity may give rise to a lack of independence, or a perception of bias. However, it remains the case in maritime arbitration that the pool of arbitrators and the number of specialised law firms and other representatives who appoint arbitrators is not large and it is accepted as inevitable that such circumstances will arise. This is not considered to be a matter for disclosure although an arbitrator should always be satisfied as to the other matters referred to in these notes …”
“1.4 Where there has been a regular relationship in the past, whether with the proposed appointor or with the opponents to the dispute, the test is usually one of time. As a general guideline a period of less than three years will require disclosure by the arbitrator. However, whilst the question of actual independence is very important, what is crucial is the question of how a reasonable party may perceive the situation. If a reasonable party may reasonably think that there is or has been an undue connection resulting in a perceived lack of independence, then whether or not that is the case, the Courts would be likely to intervene, if invited. It follows that arbitrators should not accept appointments in the first instance where there is any substantial risk of that happening.”
“1.3 There are obvious cases which preclude the acceptance of an appointment, if it be offered. These include a personal or ongoing or recent commercial relationship with one of the parties, even though it may be, or may have been, on a casual basis only, and whether or not related to the dispute. In such circumstances an arbitrator should consider carefully whether, to a third party, he or she would be seen as independent and impartial. In most cases it is likely that the prudent course would be to refuse the appointment.”
“Article 11 requires the disclosure of “any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality”
“Each arbitrator or prospective arbitrator must assess what circumstances, if any, are such as to call into question his or her independence in the eyes of the parties or give rise to reasonable doubts as to his or her impartiality. In making such assessment, an arbitrator or prospective arbitrator should consider all potentially relevant circumstances, including but not limited to the following: … • The arbitrator or prospective arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel’s law firm.”
“76. Against this background, it was in my view clearly appropriate, under the applicable ICC Rules and bearing in mind the guidance given in the Arbitrator Statement and the Note (which in my view must be taken as representing good current arbitral practice) for DEG to disclose the two relatively recent appointments by Freshfields, which brought the total number of appointments or nominations for appointment (including the current nomination) to four, within a relatively short space of time. As Mr. Juratowitch KC’s submissions acknowledged, the Lenders’ present case would certainly have been problematic if disclosure of these two appointments had not been made. 77. However, the disclosure was in fact made, and no criticism can be made of the arbitrator in relation to the two prior appointments. The question which arises is whether, as Aiteo contends, the disclosure was incomplete, because of the non-disclosure of a further recent professional relationship between DEG and Freshfields.”
“An advisory engagement of that kind [i.e. the engagement in June-July 2020], whether in respect of a barrister or retired judge, gives rise to a closer and different relationship to that which exists between arbitrator and the firm of solicitors which has appointed him or her” [79]. But most significantly, the Judge’s finding that DEG was bound to disclose her instruction by Freshfields in June-July 2020 was clearly made in the context of the application of the ICC Rules, containing as they do the element of subjectivity: see [87] and, in particular [93]: “I do not consider that it is appropriate to approach this issue by considering what the position would be under English law divorced from the terms of the ICC Rules; bearing in mind that the parties, as well as the arbitrator when accepting appointment, were bound by those Rules. The more significant question, therefore, is whether the June–July 2020 engagement was disclosable under article 11 of the ICC Rules; because it was a fact or circumstance which “might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties” or because it was a circumstance that “could give rise to reasonable doubts as to the arbitrator’s impartiality”
“The February–March 2022 engagement was another professional engagement by Freshfields, and both the Note and the terms of the ICC Arbitrator Statement would point very clearly in the direction of disclosure.”
“[a]n important and unusual feature of the present case is that a successful challenge to DEG was made to the ICC Court, which is the ICC body responsible for dealing with challenges to arbitrators pursuant to article 14 of the rules which govern ICC arbitrations, namely the ICC Rules of Arbitration (“the ICC Rules”). … Challenges are often made, but rarely succeed. The ICC Court gave its unreasoned decision [on17 January 2024 ], upholding the challenge on its merits. The challenge was made upon substantially the same grounds as those advanced on the present application under section 68.”
“In my view, the observer would pay regard to the decision, and indeed it is difficult to see how the observer’s approach could not, at least to some degree, be coloured by the decision taken by the arbitral institution, here the ICC Court, which has determined the challenge. An informed observer would recognise that the ICC Court had considerable experience of determining challenges, inevitably far more experience than the observer. He or she would also recognise that the ICC is one of the world’s leading arbitral institutions, and that the parties must have had faith in that institution since they agreed to submit their disputes to ICC arbitration.”
“The observer would consider that there was a real possibility of unconscious bias, notwithstanding that there were some factors which would favour a different conclusion. The observer would feel comfortable in reaching that conclusion in circumstances where the ICC Court had removed DEG as arbitrator. Any possible doubt as to the answer to the question for the observer would be resolved by the consideration of the decision of the ICC Court, which would strike the observer as rational and well founded.”
“For a leading silk/arbitrator in a very specialist area like shipping, the number of occasions on which Mr. H has been appointed by either me or my department (which acts in many shipping arbitrations at any one time) or my firm (which practices in many other areas) more generally, is not unusually high, whether in absolute terms or relative to his overall practice.”
“Service of the claim form by an alternative method or at an alternative place 6.15 (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
“The first point to be made is that it cannot be enough that Mr. Barton’s mode of service successfully brought the claim form to the attention of Berrymans. As Lord Clarke JSC pointed out in Abela v Baadarani[2013] 1WLR 2043 , this is likely to be a necessary condition for an order underCPR r 6.15 , but it is not a sufficient one. Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period, as they do in this case. Time stops running for limitation purposes when the claim form is issued. The period of validity of the claim form is therefore equivalent to an extension of the limitation period before the proceedings can effectively begin. It is important that there should be a finite limit on that extension. An order underCPR r 6.15 necessarily has the effect of further extending it. For these reasons it has never been enough that the defendant should be aware of the contents of an originating document such as a claim form. Otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process.”
“A claimant is asking for a retrospective validation of non-compliant service in order to circumvent a limitation defence. Quite trivial errors can sometimes lead to limitation deadlines being missed. That can be harsh, and may be characterised as technical; but it is recognised as a necessary consequence of a limitation regime. The court will in this context be less ready to overlook mistakes of a kind which in other contexts would be accorded no real weight.”
“However and fundamentally, the court in Denton v White was not addressing relief from sanctions (or extensions of time) in the context of service of originating process. As set out above, applications for extensions of time for service of Part 7 and Part 8 claims do not fall underCPR r 3.1 (2)(a) (but underCPR r 7.6 ). There is nothing to suggest that the court in Denton v White (or Hysaj) had in mind failures in service of originating process and applications for extensions of time for service of any claim of any sort, including judicial review claims. The three cases the subject of the appeals in Denton v White involved failures to comply with procedural failures during the life of the claims in question, that is to say after service of the claim forms. The breaches were variously late service of witness statements, failure to comply with an "unless” order, late service of a costs budget and late reporting of the outcome of settlement negotiations. The earlier case of Mitchell v News Group Newspapers Ltd (Practice Note)[2014] 1WLR 795 ("Mitchell”) also arose out of the late filing of a costs budget. The cases following Mitchell and considered in Denton v White (at paras 13—19) arose out of late service of particulars of claim, late disclosure, late service of witness statements and late tendering of security for costs. Hysaj involved late service of a notice of appeal.”