CL-2024-000510 - [2025] EWHC 1523 (Comm)

Even if I am wrong about this and Mr. H did have a duty to disclose his other unrelated appointments by Reed Smith as arbitrator, I do not consider that that factor, namely Mr. H’s failure to disclose them, when viewed in the light of all other relevant factors, would or might lead the fair-minded and informed observer, having considered all the facts, to conclude that there was a real possibility that he was biased.

The factors which the fair minded and informed observer would take into account before passing judgment in this case, and which would lead him/her to conclude that there was no real possibility that Mr. H was biased, are as follows.

First, the custom or practice for parties or their representatives to frequently appoint the same arbitrator in different cases in the London maritime market.

Second, I accept the evidence of Mr. Weller who states at [70] of his first witness statement:

“For a leading silk/arbitrator in a very specialist area like shipping, the number of occasions on which Mr. H has been appointed by either me or my department (which acts in many shipping arbitrations at any one time) or my firm (which practices in many other areas) more generally, is not unusually high, whether in absolute terms or relative to his overall practice.”

Seen in this context, when one looks at the substance of the information given by Mr. H about his previous instructions, I consider that the fair minded and informed observer would not conclude that there was a real possibility of bias on the part of Mr. H. During the past 5 years (2019-2024), Mr. H has received 88 appointments as arbitrator, of which just 14 were appointments by Reed Smith (16%) over the entire 5-year period (which averages under 3 a year), being mostly LMAA arbitrations. It follows that 74 were not (the other 84%). Moreover, most of these never proceeded beyond appointment. Last, Reed Smith’s appointments account for merely 8% of Mr. H’s total income from his arbitral appointments during this period (of which K itself accounts for 37%).

This information certainly does not suggest that Mr. H was dependent in any way upon Reed Smith for his appointment as an arbitrator (and certainly not as counsel) and it affords no reason to doubt Mr. H’s integrity and impartiality.

Third, the transparent fairness with which Mr. H, together with Mr. B, and then subsequently with Mr. B and Mr. S, made all of the Tribunal’s rulings throughout.

Fourth, that Mr. H has an established reputation for integrity and wide experience in maritime arbitration, which would be known to both Zaiwalla and Reed Smith.

Fifth, that both Mr. B and Mr. S who also have an established reputation for integrity, wrote to Zaiwalla to confirm that none of the Tribunal’s decisions have been influenced by any past professional relationship with Reed Smith and to state that all of the Tribunal’s decisions had been taken unanimously on the merits.

Sixth, that Mr. H responded promptly and courteously to all enquiries made of him by Zaiwalla despite the provocative nature of those enquiries. Indeed, whilst Mr. B and Mr. S stated that they were not required to respond to the enquiries of Zaiwalla about their connections with Reed Smith after the arbitration was concluded and the Award published, Mr. H constructively and voluntarily obtained the available information from his clerks and passed it on to Zaiwalla.

Seventh, that Mr. H’s courteous response to the enquiries was given in the context of opportunistic and tactical challenges to the integrity of the Tribunal as a whole, as described above.

Eighth, the fact that Mr. H made clear, on each of the two occasions when he provided Zaiwalla with the statistics concerning his receipt of appointments as counsel and as arbitrator, that he was passing on the information given to him by his clerks who kept the relevant records. Mr. H was not seeking to mislead; rather he was passing on historical information given to him by his clerks, the accuracy of which it is not alleged he had any reason to doubt.

Ninth, despite threatening to do so and despite repeated offers by the Tribunal to do so, the Claimants never brought a section 24 challenge to have Mr. H removed as arbitrator based upon his past professional connections with Reed Smith and/or Mr. Weller (when Mr. H would have been entitled to appear before the court and be heard).

Tenth, the Claimants and Zaiwalla’s own actions set out in paragraphs 71 and 86 above.

Eleventh, if in fact there were a duty upon Mr. H to disclose his appointments by Reed Smith in unrelated arbitrations, then there was a lack of clarity in English law as to that obligation of disclosure. Mr. H might legitimately have thought, particularly in the light of the submissions to the Supreme Court by the LMAA in Halliburton and/or the LMAA’s Advice on Ethics that there was no obligation of disclosure resting upon him in respect of unrelated appointments by Reed Smith.

In all the circumstances I firmly reject the suggestion: