Queen’s Bench Division
Published August 6, 2007
ASM Shipping Ltd of India v Harris and Others
Before Mr Justice Andrew Smith
Judgment June 28, 2007

It was not the case that where one member of a tribunal was tainted by apparent bias that the whole tribunal was thereby affected.

Mr Justice Andrew Smith so held in the Queen’s Bench Division when dismissing the claim of the claimant, ASM Shipping Ltd, under section 24 of the Arbitration Act 1996 for an order for the removal of the first and second defendants, Mr Bruce Harris and Mr A. G. Scott, two arbitrators, on the ground that circumstances existed that gave rise to justifiable doubts about their impartiality, in a reference of a dispute concerning a charter-party between ASM Shipping of India, the owners, and the third defendant, TTMI Shipping Ltd of England, the charterers. Mr Sarosh Zaiwalla, solicitor, and Mr Kumarlo Menns, solicitor, for the claimant; Mr Simon Croall for TTMI Shipping; the arbitrators made written submissions.

MR JUSTICE ANDREW SMITH said that no suggestion had been made either that Mr Harris or Mr Scott had been guilty of any sort of improper or unprofessional conduct nor were they to be the subject of any such criticism.

The application for the removal of the two arbitrators had arisen out of the fact that in 2005 Mr Justice Morison had upheld ASM’s allegation under section 68 of the 1996 Act, enabling ASM to challenge an interim award on preliminary issues on the ground that the third arbitrator, Mr Duncan Matthews, QC, should have recused himself because of apparent bias: see ASM Shipping Ltd of India v TTMI Shipping Ltd of England ([2006] 2 All ER (Comm) 122).

Mr Justice Morison had rejected the application to set aside the award but held that Mr Matthews should not continue to act in the arbitration. Mr Matthews had subsequently recused himself.

ASM then made the section 24 application in respect of the two remaining arbitrators on the ground, inter alia, that since one arbitrator had been tainted by apparent bias, the remaining two arbitrators were thereby also tainted by apparent bias and ought to recuse themselves.

His Lordship said that there was not an invariable rule, nor was it necessarily the case that where one member of a tribunal was tainted by apparent bias the whole tribunal was affected second hand by apparent bias and therefore should recuse themselves or should be excluded from the proceedings.

That was not to say that it was irrelevant to the question of bias that the remaining arbitrators would have had discussions with the third arbitrator.

However, it did not follow as a matter of law from the finding of apparent bias against one arbitrator that the whole of the original arbitral tribunal and each member of it were tainted by apparent bias.

The inquiry would depend on the particular facts of the case. Solicitors: Zaiwalla & Co; Waterson Hicks.

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