Halliburton Company v Chubb Bermuda Insurance Ltd

Interveners:-

(1)        International Court of Arbitration of the International Chamber of Commerce

(2)        London Court of International Arbitration

(3)        Chartered Institute of Arbitrators                   (written submissions only)

(4)        London Maritime Arbitrators Association      (written submissions only)

(5)        Grain and Feed Trade Association                 (written submissions only)

LORD HODGE: (with whom Lord Reed, Lady Black and Lord Lloyd-Jones agree)

1.                  It is axiomatic that a judge or an arbitrator must be impartial; he or she must not be biased in favour of or against any party in a litigation or reference. A judge or arbitrator, who is not in fact subject to any bias, must also not give the appearance of bias: justice must be seen to be done. This appeal is not concerned with any deliberate wrongdoing or actual bias but with the circumstances in which an arbitrator in an international arbitration may appear to be biased. It raises important questions about the requirement that there be no apparent bias and the obligation of arbitrators in international arbitrations to make disclosure.

2.                  The appeal concerns an arbitration under a Bermuda Form liability policy which arose out of the damage caused by the explosion and fire on the Deepwater Horizon drilling rig in the Gulf of Mexico in 2010 when a well was being plugged in the context of a temporary abandonment. That disaster gave rise to several arbitrations between insured parties and insurers. The principal issues which are raised in this appeal are: (i) whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias, and (ii) whether and to what extent the arbitrator may do so without disclosure.

3.                  I will therefore address first, the duty of impartiality in the context of arbitration, secondly, whether an arbitrator is under a legal duty to disclose particular matters, thirdly, how far the obligation to respect the privacy and confidentiality of an arbitration constrains his or her ability to make disclosure, and fourthly, whether a failure to disclose such matters demonstrates a lack of impartiality. I then address the times at which (a) the duty of disclosure and (b) the possibility of bias fall to be assessed.

4.                  The appellants (“Halliburton”) entered into a Bermuda Form liability policy (“the Policy”)…