2018年4月19日，英国上诉法院维持了高级法院拒绝解除被质疑有失公正性的仲裁员之判决（点击：”阅读原文“）。该判决为仲裁员在相关案件中如何接受指定提供了指引。

在一关于深水地平线事件（Deepwater Horizon incident）引起索赔的保单仲裁案件中，首席仲裁员的身份无法协商一致，法院委任了该名仲裁员。

在委任前，该名仲裁员披露了其曾在Chubb作为当事人的多个仲裁案件中担任仲裁员的情况，包括Chubb指定其为共同仲裁员，并且其目前在另外两个Chubb参与的未决案件中被任命为仲裁员。

该仲裁员随后也在另一个因相同事件发生的与Transocean公司的仲裁案件中接受了Chubb指定。在任命前，仲裁员向Transocean披露了其在Halliburton案件中以及已向Halliburton作出披露的Chubb仲裁案件中的指定情况。Transocean未提出异议。仲裁员之后在Transocean的另一索赔案件中接受了指定。上述这些指定并未向Halliburton披露。

在得知这些指定后，Halliburton向该首席仲裁员发函质疑其公正性以及其未披露在Transocean案件中的该等指定情况并建议其自动辞职。该仲裁员回复不认可存在任何有失公正性的情况，但认可其本应审慎披露该等任命，并提出在得到Chubb同意（随后并未同意）后辞职。

Halliburton根据1996年仲裁法第24条向法院申请撤换由法院任命的首席仲裁员，该条规定了法院有权基于如下理由撤换仲裁员：‎“存在当事人对该仲裁员的公正性产生具有合理怀疑的事由…”。"that circumstances exist that give rise to justifiable doubts as to his impartiality …".

本案件涉及到的仲裁员的披露问题，是所有仲裁员均会遇到的问题，不过本案件的关键在于，并非是某一方当事人多次指定某一仲裁员在不同的案件中作为共同仲裁员的情况，而是该名仲裁员在同时或者交替进行的仲裁案件中交替作为共同仲裁员和首席仲裁员，因此，在其他案件中被单方指定的仲裁员在本案件中作为首席仲裁员，会导致该首席仲裁员的公正性产生怀疑，特别是在仲裁员将仲裁作为职业的情况下，为了利益，就会产生利益冲突问题。

Halliburton v Chubb [2018] EWCA 817

International commercial arbitration practice.

The Court of Appeal has handed down judgment in this appeal from the High Court's refusal to remove an arbitrator for alleged doubts as to his impartiality. The decision provides guidance as to how arbitrators should approach appointments in related references.

In an arbitration between the parties under an insurance policy in respect of a claim arising out of the Deepwater Horizon incident, the identity of the third arbitrator could not be agreed; a Court appointment was made.

Prior to appointment, the third arbitrator disclosed that he had previously acted as arbitrator in a number of arbitrations in which Chubb was a party, including appointments on behalf of Chubb, and that he was currently appointed as arbitrator in two pending references in which Chubb was involved.

The arbitrator also later accepted appointment by Chubb in relation to an arbitration with Transocean arising out of the same incident.‎ Prior this appointment, the arbitrator disclosed to Transocean his appointment in the Halliburton reference and in the other Chubb arbitrations which had been disclosed to Halliburton. Transocean raised no objection. The arbitrator then accepted appointment as arbitrator in another Transocean claim. The above appointments were not disclosed to Halliburton.

When it learned of the appointments, Halliburton wrote to the third arbitrator, questioning his impartiality and failure to disclose the appointments in Transocean references and suggesting he resign. The third arbitrator responded, rejecting any lack of impartiality, accepting it would have been prudent to disclose the appointments and offering to resign subject to Chubb's agreement, which was not forthcoming.

Halliburton applied to the court to remove the court-appointed third arbitrator under s24 of the Arbitration Act 1996, which provides that the court has power to remove an arbitrator on the grounds:

"that circumstances exist that give rise to justifiable doubts as to his impartiality …".

‎

The three elements of the third arbitrator's conduct which Halliburton relied upon as giving rise to an appearance of bias were: (1) his acceptance of the appointments in the Transocean arbitrations; (2) his failure to disclose those appointments to Halliburton; and (3) his response to the challenge to his impartiality.

(1) Whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias.

(2) Whether and to what extent he may do so without disclosure

(3) When should an arbitrator make disclosure of circumstances which may give rise to justifiable doubts as to his impartiality?‎

(4) What are the consequences of failing to make disclosure of circumstances which should have been disclosed?

‎

The Court of Appeal‎ found that the third arbitrator ought as a matter of good practice and, in the circumstances of the case, as a matter of law to have made disclosure to Halliburton at the time of his appointments in the Transocean references. However, the Court‎ upheld the first instance decision that the fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the third arbitrator was biased. ‎The application to remove the arbitrator under s24 of the Act was therefore refused.

The Court clarified that "... the mere fact that an arbitrator accepts appointments in multiple references concerning the same or overlapping subject matter with only one common party does not of itself give rise to an appearance of bias."

‎As to whether an arbitrator may accept such appointments without disclosure, the Court commented that "... disclosure should be given of facts and circumstances known to the arbitrator which ... would or might give rise to justifiable doubts as to his impartiality ... [i.e.] which would or might lead the fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the arbitrator was biased.‎"

If disclosure ought to have been made but was not, "the court needs to consider the significance of that non-disclosure in the context of the application with which the court is dealing. In the case of an application for removal of the arbitrator in question, the court will consider on the basis of all the factual information available when that application is heard (including the fact that there has been non-disclosure), whether the fair-minded and informed observer would conclude that there was a real possibility that the arbitrator was biased.

"If a disclosure that ought to have been made has not been made, that will mean that the arbitrator will not have displayed the "badge of impartiality" which he should have done.‎.. the fact of non-disclosure "must inevitably colour the thinking of the observer"."

"Non-disclosure is therefore a factor to be taken into account in considering the issue of apparent bias. An inappropriate response to the suggestion that there should be or should have been disclosure may further colour the thinking of the observer and may fortify or even lead to an overall conclusion of apparent bias ...‎"

"Non-disclosure of a fact or circumstance which should have been disclosed, but does not in fact, on examination, give rise to justifiable doubts as to the arbitrator's impartiality, cannot, however, in and of itself justify an inference of apparent bias. Something more is required."