Edward Alder considers recent judgments on conflicts of interest for barrister arbitrators where a party’s law firm has instructed the barrister as counsel in other cases.
Barrister-arbitrators: conflicts of interest and instructing solicitors In jurisdictions with independent Bars such as Hong Kong and England barristers are often approached for potential arbitral appointments. Their independence is one of the reasons they are popular choices. Unlike lawyers in large firms, barristers often have no conflicts with the parties. A potential conflict issue arises where a law firm for a party has instructed the barrister as counsel in other cases or for other clients.
The IBA Guidelines on Conflicts of Interest in International Arbitration 2014 (1) focusses chiefly on jurisdictions with ‘fused’ legal professions. References to barristers’ chambers in General Standards (6)(a) and (7)(b) make clear barristers’ chambers are not law firms for conflict purposes.An ‘Orange List’ matter is one that ‘depending on the facts’ may give rise to doubt as to an arbitrator’s impartiality under General Standard 3(a) so that the arbitrator has a duty to disclose. Part II(3) is ambiguous. It is unclear whether the duty refers to all situations falling under the Orange List wording or only where ‘on the facts’ there may be doubt. §3.3.2 states, understandably, that the fact that an arbitrator and another arbitrator or party counsel are members of the same chambers is an ‘Orange List’ matter. §3.3.9 identifies where the arbitrator and another arbitrator or party counsel currently act or have acted within the past 3 years as ‘co-counsel’. Clearly solicitors and barristers acting together on a case are co-counsel. But this too is ambiguous. Does ‘party counsel’ refer to the individuals appearing in the current reference or their entire firm? This is important because a barrister-arbitrator may have been instructed by the firm acting for a party but not by the individual advocates.
In BYL v BYN (2) Reyes IJ applied the common law test for apparent bias (3) to an arbitrator and considered §3.3.9. He held that a ‘co-counsel’ relationship between the arbitrator and a party’s law firm in a different case that overlapped in time with the reference did not create apparent bias. The arbitrator was an independent barrister not a partner of the firm. The relationship per se did not create a conflict, although ‘something about the actual contact’ may. The contacts between the arbitrator and the other lawyers of the party’s firm were insufficient for apparent bias. The other lawyers had approached the arbitrator while the Singapore tribunal was writing the award about instructing him in a matter in court in India. The arbitrator had not disclosed the issue initially. Reyes IJ found the nondisclosure was insufficient to meet the test citing Halliburton: ‘Non-disclosure of a … circumstance which should have been disclosed but does not … on examination give rise to justifiable doubts … cannot … of itself justify an inference of apparent bias … something more is required’.(4) In W v AW (5) M Chan J applied a fair-minded observer test similar to Reyes IJ’s. She considered §3.3.9 and §3.3.6 (close friendship between arbitrator and counsel). The complaints were that although the arbitrator had disclosed that 2 of the appearing party counsel were members of her chambers shehad not disclosed she was co-counsel with 1 on 3 occasions in the past 3 years had attended marketing events with the other and he had attended her birthday 5 years earlier. Chan J held a fairminded bystander would know barristers share chambers and professionals often associate and participate in joint marketing events and that would not influence any decision in a case. There was no link between the association and any possible capacity to influence the decision.
1 ibanet.org/resources
2 [2020] SGHC(I) 06 [53] – [55], elitigation.sg/gd/sic/2020_SGHCI_6
3 “reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the [facts]”
4 Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48
5 [2021] HKCFI 1707 [61] hklii.hk/eng/hk/cases/hkcfi/2021/1707.html
She also held that under the IBA Guidelines non-disclosure cannot by itself make an arbitrator partial
or lacking in independence. The cases answer one point: ‘counsel for one of the parties’ in §3.3.9 potentially includes other lawyers in the same firm as the counsel appearing in an arbitration. They also make clear that nondisclosure of a potential issue that turns out not to give rise to a concern does not itself give rise to a concern.
The mere fact that a law firm acting for a party has instructed or is presently instructing a barrister arbitrator in another matter is not a conflict of interest. However, barristers approached for potential appointments should disclose any Orange List matter that arises from instructions from party lawyers or their firm partners, including normal instructions to appear in other cases.
Edward Alder is a barrister with an extensive arbitration practice as both counsel and arbitrator.