The proposed reform of the English Arbitration Act on arbitrators’ independence and impartiality and the duty of disclosure from a comparative perspective

There have been numerous cases dealing with claims of alleged lack of independence and impartiality before domestic courts, international arbitration tribunals, and even regional human rights courts such as the European Court of Human Rights. Against this backdrop, the international arbitration community has increasingly focused on the development of guidelines and updated rules pertaining to arbitrators’ impartiality and independence.

The focus on arbitrators’ independence and impartiality has also landed in England and Wales, initially in the UK Supreme Court (the “UKSC”) judgment in Halliburton v Chubb and, subsequently, in the context of the Law Commission’s review of the English Arbitration Act 1996 (the “EAA”). Among other topics under discussion, the Law Commission has considered whether the EAA should impose express duties of independence and disclosure on arbitrators. The recommendation set out in the Law Commission’s Final Report is to maintain the current wording of the EAA, which includes an obligation of impartiality but not an obligation of independence and codify that “arbitrators have a continuing duty to disclose any circumstances which might reasonably give rise to justifiable doubts as to their impartiality.”

For an overview of the proposed reform of the EAA and a comparative analysis of courts' approach to independence and impartiality of arbitrators, read the full article or contact Camilla Gambarini, Special Counsel in our international arbitration and public international law group in London. Camilla discusses the proposal to amend the EAA in relation to the issue of the independence and impartiality of arbitrators and the duty of disclosure, comparing it with current practices under international human rights law, international arbitration rules, and selected civil law and common law legislative regimes. 

This article was originally published for Arbitration International (Volume 40, Issue 1, March 2024, Pages 37–66).