This article analyses two important recent decisions of the English court on apparent bias in international arbitration issued in early 2016. The article explains the English law concept of apparent bias and defines the legal test, providing illustrative examples. The article then examines each judgment in turn and concludes with the lessons that can be learned from them.
The decisions are Cofely Ltd v (1) Anthony Bingham and (2) Knowles Ltd  EWHC 240 (Comm) and W Ltd v M Sdn Bhd  EWHC 422 (Comm). They arise out of two commonly encountered issues. The first is in Cofely, where the arbitrator is regularly appointed by a party. The second is in W v M, where the arbitrator's law firm has a commercial relationship with a party's group of companies. In Cofely the arbitrator's appointment was revoked by the English court on the basis of apparent bias. In W v M, a challenge to an award on the basis of apparent bias by the arbitrator was rejected by the English court.
The judgments illustrate the approach that English arbitrators, judges and lawyers are likely to take to issues of arbitrator bias. That involves making reference to the IBA Guidelines, but not treating them as determinative. The decisions are of relevance to any practitioner who may become involved in arbitrations involving English parties or law, or who need to enforce an award in England. Because they contain analyses of the IBA Guidelines, they are also relevant to arbitration and related court proceedings involving the IBA Guidelines even where there is no direct nexus with English law.ASA Bulletin