ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
• direct that the tribunal be constituted by the appointments made (Section 18 (3)(b)); • revoke any previous appointments (Section 18 (3) (c)); and • make the necessary appointments itself (Section 18 (3)(d)). Furthermore, unless the parties agree otherwise, where each of the two parties is required to appoint an arbitrator and one party refuses to do so (either at all or within the agreed time period), the other party may give notice in writing to the party in default that it proposes to appoint its arbitrator to act as sole arbi - trator (Section 17 (1)). 4.3 Court Intervention The English courts can exercise certain powers to appoint under the default procedure, or can intervene where the parties have agreed an appointment mech - anism but it has failed (see 4.2 Default Procedures ). 4.4 Challenge and Removal of Arbitrators A party may apply to the English courts to remove an arbitrator and the court has the power to remove an arbitrator on the grounds that: • there are justifiable doubts about their impartiality; • an arbitrator does not possess the qualifications required by the parties’ arbitration agreement; • an arbitrator is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to their capacity to do so; or • an arbitrator fails to conduct the proceedings prop - erly or to use all reasonable dispatch in conducting the proceedings (Section 24). While the challenge is pending, the tribunal may con - tinue the arbitral proceedings and make an award (Section 24 (3)). Arbitrators who are subject to a Section 24 challenge may be heard before the court makes an order (Section 24 (5)). In H1 v W [2024] EWHC 382 (Comm), the court removed an arbitrator for apparent bias after the arbi - trator remarked during a procedural hearing that he knew one of the parties’ expert witnesses well and that there would be no need for him to be called to an evidential hearing, suggesting that the arbitrator
had already decided to accept the expert’s evidence rather than assessing it objectively following cross- examination. 4.5 Arbitrator Requirements Section 33 of the 1996 Act provides for the gener - al mandatory duties of arbitrators, which include a requirement that arbitrators act fairly and impartially between the parties. The English courts apply an objective test to the issue of impartiality. The court will ask whether a fair-mind - ed and informed observer would conclude that there was a real possibility of bias ( Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48). The 2025 Act has codified the general duty of disclo - sure recognised in Halliburton in a new Section 23A of the 1996 Act, which provides that an individual approached in connection with their possible appoint - ment as an arbitrator, or once appointed, must dis - close any relevant circumstances of which they are, or become, aware that “might reasonably give rise to justifiable doubts as to the individual’s impartiality in the proceedings”. In Halliburton , the UK Supreme Court confirmed that an arbitrator has a legal duty to disclose matters that would or might give rise to justifiable doubts as to their impartiality. The Supreme Court held that there may be circumstances where the acceptance of multiple appointments involving a common party and the same or overlapping subject matter gives rise to an appear - ance of bias; whether it does so will depend on the facts of the case and, in particular, the customs and practice in the relevant field of arbitration. In that case, the Supreme Court concluded that the arbitrator had a legal duty to disclose the appointments in related disputes. However, the failure to disclose did not ulti - mately give rise to apparent bias for several reasons, including the fact that there was no prospect of the appointing party gaining any advantage by reason of overlapping references. In contrast, in Aiteo Eastern E&P Co Ltd v Shell Western Supply and Trading Ltd [2024] EWHC 1993 (Comm), the High Court applying the Halliburton test held that there was apparent bias in circumstances where an arbitrator had provided an
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