UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
respondents must nominate jointly, failing which the ICC Court may appoint the entire tribunal. 4.3 Court Intervention A court can intervene in the selection of arbitrators, but only on a defined statutory basis. Section 1 (c) provides that the court should not intervene except as provided by Part I, so its role is supportive and residual. The principal route is Section 18: where the appointment procedure has failed, the court may give directions, revoke appointments or make the appoint - ment itself. Section 18 (4) provides that an appoint - ment made by the court has effect as if made with the agreement of the parties. Under Section 18 (5), the leave of the court is required for any appeal from a decision under this Section. The court also has a limited role under Section 17 (setting aside a default sole-arbitrator appointment) and Section 24 (removal: see 4.4 Challenge and Removal of Arbitrators ). As for limitations: first, Section 18 is engaged only on a genuine failure of the appointment procedure, a gateway the courts scrutinise carefully. Secondly, the court must respect party autonomy: it must have due regard to agreed qualifications (Section 19), and its purpose is to get the arbitration constituted so that it may proceed, not to supervise it ( Sangamneheri v The Chartered Institute of Arbitrators & Ors [2022] EWHC 886 (Comm)). Thirdly, where the parties have vested an institution with appointment or removal powers, that recourse must first be exhausted (Section 24 (2)). 4.4 Challenge and Removal of Arbitrators The 1996 Act distinguishes revocation from court removal. Under Section 23, the parties or an institu - tion may revoke an arbitrator’s authority. Under Sec - tion 24, a party may apply to the court to remove an arbitrator on four grounds: justifiable doubts as to impartiality; lack of agreed qualifications; physical or mental incapacity to conduct the proceedings (or jus - tifiable doubts about the ability to do so); and failure properly to conduct proceedings or use reasonable despatch, causing substantial injustice. Institutional recourse must be exhausted first (Section 24 (2)), and the arbitrator has a right to be heard. Section 24 (1)(a) reflects the objective common law test for apparent bias: whether the fair-minded
observer would conclude that there is a real possibil - ity of bias ( Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48). Non-disclosure is a factor – depriving the arbitrator of the “badge of impartiality” – but is not automatically disqualifying. In a close case, it may tip the balance. Cofely Ltd v Bing- ham [2016] EWHC 240 (Comm) is an example where removal was ordered. A party that participates without timely objection risks losing the right to object (Sec - tion 73) and a breach of Section 33 may also found a post-award challenge under Section 68. Following the Arbitration Act 2025, an arbitrator who resigns incurs no liability unless the resignation is unreasonable, and costs orders against an arbitrator in removal proceedings may be made only in bad faith, reinforcing immunity under Section 29. 4.5 Arbitrator Requirements Under English law, the statutory touchstone is impar - tiality rather than independence. Section 33 requires the tribunal to act fairly and impartially, and justifi - able doubts as to impartiality ground removal under Section 24. The 1996 Act deliberately contains no separate duty of independence – lack of independ - ence matters only in so far as it gives rise to justifi - able doubts as to impartiality ( Laker Airways Inc v FLS Aerospace Ltd [1999] EWHC B3 (Comm); confirmed in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48). The duty of disclosure is now express. Section 23A, inserted by the Arbitration Act 2025 for proceedings commenced on or after 1 August 2025, requires a pro - spective or appointed arbitrator to disclose, as soon as reasonably practical, circumstances that might reasonably give rise to justifiable doubts as to their impartiality, judged by what the individual knows or ought reasonably to know, and applying from the time they are approached about appointment. This codi - fies and strengthens the continuing common law duty recognised in Halliburton , which also confirmed that disclosure operates alongside the implied duty of con - fidentiality in English-seated arbitration.
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