GOOD MORNING FROM LONDON
GUIDANCE ON BIAS
In its decision, the Supreme Court gave guidance on five issues regarding bias arising out of an arbitration based on quite different facts to our case. In our Belgian/Israeli arbitration the issue is not whether Mr Stallard has received repeat appointments by the lawyers representing the Belgian company but whether his critical views of Israel’s conduct in the present Middle East crisis should be disclosed by him to the Tribunal and, second, whether as a consequence of holding such views – firmly expressed at a social gathering of fellow arbitrators – Mr Stallard should stand down from the arbitration.
Mr Stallard does have a duty to bring any matters of bias or partiality to the attention of the Tribunal for the Tribunal to rule upon. He cannot remain mute and hope that the matter will pass. In fact he has not volunteered any information about his views on Israel because he never thought a connection could be made between his undoubted reservations about Israel re Gaza and Hamas and the commercial issues in dispute between the parties It is, therefore, for the Tribunal to decide whether on the facts Mr Stallard should withdraw.
There is one additional issue that Mr Stallard has not disclosed. The Wind Farm arbitration has become a big dispute. The number of documents are considerable and the experts’ reports are lengthy. The hearing with witnesses will last a few weeks and Mr Stallard is aware that a considerable fee is to be earned – something quite helpful to him as the wedding of his eldest daughter approaches which he is due to fund. The wedding will not make him bankrupt but without the arbitration fee that is coming his way family finances will become quite tight. He has a vested interest, say the lawyers for the Israeli company, in continuing to sit as a member of the Tribunal and should, therefore, stand down.
First, do Mr Stallard’s strong and critical views on Israel require him to stand down? Second, is the size of Mr Stallard’s arbitration fee a factor that he should disclose to the Tribunal?
The responsibility lies with the City firm of lawyers representing the Israeli defendant, WXYZ, to make the argument to the Tribunal that Mr Stallard’s firm anti-Israel views on the Hamas issue make it impossible for him to put those views to one side for the duration of the arbitration hearing – likely five weeks – and to concentrate exclusively on the commercial issues in dispute between the Belgian Claimant and the Israeli defendant. Mr Stallard, say the lawyers, is biased against the Israel company as evidenced by his own words at the Training Day “And I will definitely not visit Israel again” It is not the case, say the lawyers for the Israeli company that Mr Stallard is presumed to be biased. He is biased and should step down from the arbitration. ABCD should nominate another arbitrator.
The lawyers for the Belgian company disagree. They argue that Mr Stallard is an experienced arbitrator, well known among fellow arbitrators and quite capable of casting aside any thoughts he has about the Israel/Hamas issue that would make him sympathetic and/or partial to the position of the Belgian company. His views on Gaza, say the lawyers for the Belgian company, are, simply not relevant and he should continue to participate in the arbitration hearing.
The lawyers for the Israeli company respond that Mr Stallard is biased against Israel and it is quite reasonable to expect his firm opinions about Israel to prevent him from considering – impartially and objectively – the commercial issues in dispute between the two parties. He must stand down.
As regards the issue of the importance of his fee to Mr Stallard’s finances, the lawyers for the Israeli company decide not to pursue the matter. It would be difficult to establish without considerable factual disclosure that he was dependant on the fee to maintain a balance in his finances and in pursuing the matter the Israeli company might lose the ear of the Tribunal. They focus, in their submissions, solely on the issue of Mr Stallard’s presumed bias arguing that circumstances do exist that give rise to justifiable doubts as to his impartiality and, as a consequence, he should withdraw.
EPISODE 4; THE SUMMING UP