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Arbitrator Independence and Impartiality, Part 1 - Murray L. Smith, QC

The independence and impartiality of an arbitral tribunal are crucial to the legitimacy of the process.

In this presentation, first delivered virtually at the CADRIn Connect Webinar on 2 September 2020, Murray L. Smith QC of Smith Barristers, Vancouver, Canada, discusses the evolution of the test for an apprehension of arbitrator bias from Lord Hewart's famous dictum in R. v. Sussex Justices (1924) K.B. 256 at 259 that "... justice should not only be done but should manifestly and undoubtedly be seen to be done" and the case law decided under Section 23 of the English Arbitration Act 1950 establishing a reasonable suspicion of bias test to the more recent conception that there can only be justifiable doubts as to an arbitrator's independence or impartiality if there is a real danger of bias.

Mr Smith compares the different approaches taken in common law countries including Australia, Canada, England and the United States and the civil law approach taken in France. He also raises the question of whether or not the test applied on an application to disqualify an arbitrator for bias early on in the proceedings is the same as the test applied on an application to set aside a final award because the arbitrator was not impartial or independent.

Murray L. Smith QC - Tests for Bias
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Mr Smith's written paper, with full case law citations, is available here:

Contributor: Murray L. Smith, QC

Murray L. Smith received his Bachelor of Science in 1973 and Bachelor of Laws in 1976 from the University of Windsor and his Master of Laws in International Business Law from the London School of Economics in 1989. He was called to the Bar of British Columbia in 1977 and qualified as an English Barrister in 1990. Mr. Smith has extensive experience as a commercial arbitrator under AAA, ICDR, ICC, BCICAC and UNCITRAL Rules. His work has focused on energy and natural resource disputes, construction disputes, technology disputes and the interpretation of commercial contracts generally. He has lengthy experience in international commercial arbitration training and legal writing in England, Canada, the United States and the Caribbean.  He collaborated with Martin Hunter and Allan Redfern in writing the leading text “Law and Practice of International Commercial Arbitration”, 2nd ed. He is a founding member of the North American Branch of the Chartered Institute of Arbitrators and the Western Canadian Commercial Arbitrators Society. Mr. Smith is currently a member of the Board of Directors of the BVI International Arbitration Centre.

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