ERDEM-NEWSLETTER-2018-metin

177 ARBITRATION LAW Arbitration practitioners need to be careful when they publicly make comments regarding companies. In one of the cases, the arbitra- tor had publicly made negative comments about the parent company of one of the parties in such a way that justifiable doubts arose as to his/ her impartiality. The test was an objective one where “a fair-minded and informed observer would conclude that there is a real possibility that the arbitrator is biased vis-à-vis that party.” 3 The requirement of objective factors was reiterated in another case 4 . The issue as to the role of tribunal secretaries is a delicate one which has caused few awards to be challenged. The LCIA has revised its Notes for Arbitrators and added notes regarding the tribunal’s mandate and the tasks tribunal secretaries may perform. In one of the decisions, tribunals were cautioned about the tribunal secretary’s involvement, particularly, their contribution to the decision-making process. In the same case, importance of confidentiality was reiterated, as breach of confidentiality could be a ground to revoke an arbitrator if it qualified as a breach of the arbitration agreement. However, it was stated that the breach should be deliberate for it to be a ground for removal of the arbitrator under the Rules 5 . Notes from Decisions Where the Challenge is Rejected The arbitrator’s disclosure obligation is still an issue which is debated. There are different views as to the scope of the disclosure and the consequences of non-disclosure. In one case, one of the grounds for the challenge related to an arbitrator not disclosing the fact that he/ she was a member to an organization to which one of the parties’ for- mer lead counsel and a lawyer who acted against the same party, were members as well. The LCIA Court concluded there were no appropri- ate grounds for the arbitrator to have disclosed such circumstances, and that since there were no specific allegations of conflict, this would not qualify as a valid ground, and rejected the challenge. 6 In another case, an arbitrator who was a barrister rejected to disclose information 3 LCIA , 22 June 2015, No. UN152998. 4 LCIA , 2 June 2015, No. 142862. 5 LCIA , 4 August 2016, No. 142683 (First challenge). 6 LCIA , 12 April 2017, No. 153149.