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Bias Challenges in International Arbitration: The Need for a Real Danger Test

ISBN13: 9789041131911
Published: November 2009
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £185.00

Despatched in 9 to 11 days.

Private international actors go to arbitration to avoid adjudicatory risks, especially the risk of bias. It follows that safeguarding procedural fairness is a key concern in arbitral processes, and that exposing actual bias is crucial. However, evidence from both case law and institutional statistics shows that wily parties are willing to abuse procedural fairness and cry bias as a way of delaying proceedings and escaping enforcement, and that the frequency of such spurious challenges is increasing.

This insightful book offers a proposal, solidly grounded in legal principle and precedent, for how the arbitration community should respond to this threat. The author shows how ‘dirty’ challenge tactics are made viable primarily by the prevalence of a judicially derived test for bias which focuses on appearances, rather than facts.

He argues that the most commonly used test of bias, the ‘reasonable apprehension’ test, makes it easy to allege a lack of impartiality and independence. He shows that the ‘real danger’ test, derived from the decision of the House of Lords in Gough, has a much higher threshold, and has the additional advantage of making the arbitral award stronger at the all-important enforcement stage.

In the course of the presentation the book analyzes, in extraordinary depth, such issues as the following:

  • which state’s courts are most likely to find arbitrator bias, and which state’s courts are least likely;
  • applying the ‘real danger’ test under the various applicable conventions, the Model Law, and institutional rules;
  • bias challenges under European Human Rights law;
  • distinction between party-appointed arbitrators and chairmen in the context of a bias test;
  • relevant trends in investor–state and ICSID arbitration; and
  • bias rules in the lex mercatoria.
In a broad comparative survey of the law of bias challenges in international commercial arbitration covering all leading states, the author examines various municipal laws to determine their tolerance for a ‘real danger’ clause in commercial contracts. His analysis, replete with case summaries and material facts, provides a strong scaffolding for his thesis, and also probes the causes of the increased rate of bias challenge.

The need for a uniform test in this area is made very convincing by this original study. Arbitrators and other interested professionals and academics will find it of unusual value and interest, and corporate counsel will find much to consider in the use of the ‘real danger’ clause.

Arbitration and Alternative Dispute Resolution
1. Bias in International Commercial Arbitration.
2. Lord Hewart’s Ghost (England).
3. Varying Approaches in Europe.
4. The American Way.
5. Competing Tests in the Asia Pacific.
6. Rules of Bias in the Lex Mercatoria.
7. Bias Challenges in Investor-State Arbitration.
8. Conclusion.

Series: International Arbitration Law Library

Arbitrators and Arbitral Institutions: Liability and Insurance ISBN 9789403509051
To be published July 2020
Kluwer Law International
Complex Arbitrations: Multiparty, Multicontract & Multi-Issue 2nd ed ISBN 9789403512617
To be published June 2020
Kluwer Law International
Interpretation of Contracts in Comparative and Uniform Law ISBN 9789403511306
Published May 2019
Kluwer Law International
The Decision Making Process of Investor-State Arbitration Tribunals ISBN 9789041196002
Published January 2019
Kluwer Law International
The Functions of Arbitral Institutions ISBN 9789041162175
Published August 2016
Kluwer Law International
Party-Appointed Arbitrators in International Commercial Arbitration ISBN 9789041166715
Published April 2016
Kluwer Law International
International Arbitration and Cross-Border Insolvency: Comparative Perspectives ISBN 9789041154194
Published September 2014
Kluwer Law International
Piercing the Veil of State Enterprises in International Arbitration ISBN 9789041151629
Published April 2014
Kluwer Law International
International Arbitration and the Permanent Court of Arbitration ISBN 9789041147660
Published August 2013
Kluwer Law International
Challenge and Disqualification of Arbitrators in International Arbitration ISBN 9789041137999
Published January 2012
Kluwer Law International
China-Africa Dispute Settlement: The Law, Economics and Culture of Arbitration ISBN 9789041136749
Published November 2011
Kluwer Law International
Confidentiality in International Commercial Arbitration ISBN 9789041132260
Published July 2011
Kluwer Law International
Arbitrability: International & Comparative perspectives ISBN 9789041127303
Published March 2009
Kluwer Law International
Force Majeure and Hardship Under General Contract Principles ISBN 9789041127921
Published January 2009
Kluwer Law International
Pervasive Problems in International Arbitration ISBN 9789041124500
Published May 2006
Kluwer Law International
Provisional Measures in International Commercial Arbitration ISBN 9789041123534
Published August 2005
Kluwer Law International
Corruption in International Trade and Commercial Arbitration ISBN 9789041122360
Published March 2004
Kluwer Law International
The Healthy Award: Challenges in International Commercial Arbitration ISBN 9789041120113
Published March 2003
Kluwer Law International
The International Effectiveness of the Annulment of an Arbitral Award ISBN 9789041117175
Published January 2002
Kluwer Law International
Arbitration in Complex International Contracts ISBN 9789041116628
Published October 2001
Kluwer Law International
Insolvency Proceedings and Commercial Arbitration ISBN 9789041111159
Published June 2000
Kluwer Law International
Arbitration and Mediation in International Business ISBN 9789041102423
Published June 1998
Kluwer Law International
Out of print
Iran-United States Claims Tribunal in Action ISBN 9781853339028
Published March 1993
Brill Academic Publishers
Out of print