Chapter 8

Question 1

• ‘The guiding principle is whether a relationship will affect an arbitrator’s impartiality or independence in any material way’. Discuss each of the following situations in the context of apparent and perceived bias. What should the arbitrator do in each case?
• The arbitrator and the claimant’s expert witness were romantically involved five years before the arbitration;
• The arbitrator and the respondent’s solicitor both attended the same law school, but graduated in different years;
• The arbitrator’s step-daughter works for a foreign subsidiary owned by the claimant;
• The arbitrator and the claimant’s solicitor both live in the same neighbourhood; or
• The arbitrator and the respondent’s managing director are both members of the same professional society (such as the Chartered Institute of Arbitrators).

Question 2

• You have been approached by two legal representatives of parties in dispute asking you to accept their nomination as arbitrator. You had dealings five years ago with one of the parties, who asked your advice on a matter unrelated to this one, which did not proceed. There have been no further contacts with them and you do not believe there is any conflict of interest. Draft your letter of acceptance. Are you going to mention the
  earlier contact?

Question 3

Examination-style question
* Some weeks after the Preliminary Conference in an arbitration conducted under the UNCITRAL Arbitration Rules and seated in a Model Law country, the Respondent discovers that Mr A and the counsel for the Claimant, who was particularly aggressive about appointing Mr B, are old school and university buddies. Mr B failed to mention this at any time.

a. Advise the Respondent as to what action is open to it;
b. On what basis can any challenge be made?
c. What is the procedure for any such challenge?