Conflicts of interest

05 Dec 2018

The event was hosted by Taylor Wessing LLP. Chaired by the London Branch Chairman, Paul Rose, Shane Gleghorn, of Taylor Wessing introduced the speakers who were Adam Rosenthal of Falcon Chambers, and Professor Graham Chase

Adam Rosenthal considered the legal framework, case law, and the current attitudes of the courts.  He gave an overview of the Arbitration Act 1996 stating that there are very limited grounds for appeal to the Business and Property Division Court of the High Court to remove a conflicted arbitrator or set aside the award.  In his view, conflicts of interest were  insufficient grounds for court intervention. The applicant would need to demonstrate that the “fair-minded and informed observer” would conclude there was a real possibility that the arbitrator was biased.

Professor Graham Chase considered the “traffic light” approach to conflicts of interest found in the International Bar Association (IBA) Guidelines on Conflict of Interest.  Although not binding, the parties often choose to refer to these guidelines. He explained that this approach grades common situations as red, orange or green according to the degree of conflict of interest. 

Professor Chase highlighted the case of W Limited v M Sdn Bhd [2016] EWHC 422 (Comm) where the court considered a weakness of the IBA Guidelines to be that certain red-listed situations remained non-waiveable, even if there was no real conflict in the particular case. He recommended an arbitrator should consider carefully whether the best course is to decline an appointment on the red list, even though the conflict is waivable by the parties.

A thoughtful question-and-answer session with the audience was followed by a reception generously sponsored by Chase & Partners LLP.