UK: Halliburton Company V Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817: Arbitral Appointments In Related Or Overlapping References

Last Updated: 24 April 2018
Article by David Turner, QC

The Court of Appeal's decision is considered by David Turner QC of 4 New Square on Monday 23rd April 2018.

The question of whether an arbitrator can accept appointments in related or overlapping references can arise with surprising frequency, especially in the context of excess layer insurance programmes. In Halliburton, the Court of Appeal held that (1) an arbitrator should have made disclosure of later references but (2) on the facts of the case, neither the fact of the later references nor the failure to disclose them would have led a fair-minded and informed observer to conclude that there was a real possibility that the arbitrator was biased.


Following the Deepwater Horizon explosion in the Gulf of Mexico on 20 April 2010, numerous claims were made against BP (the lessee of the rig), Transocean Holdings (the owner of the rig, which also supplied crew and drilling teams) and Halliburton (which provided cementing and well-monitoring services to BP. Both Halliburton and Transocean had purchased excess liability insurance on the Bermuda Form from Chubb: the policies were governed by New York law but provided for arbitration in London by three arbitrators.

Halliburton settled private claims against it for approximately US$1.1bn. Transocean paid US$212m to settle the private claims which it faced, and also paid civil penalties of around US$1bn to the US Government.

Chubb declined to indemnify Halliburton in respect of the sums paid to settle the private claims, contending that the settlement was not a reasonable settlement and/or had been entered into without Chubb's consent. Accordingly, in January 2015, Halliburton commenced an arbitration. Following disagreement between the parties, the High Court was asked to appoint the third arbitrator. In June 2015, Flaux J appointed M as the third arbitrator (referred to as "Reference 1"). Prior to his appointment, M had disclosed that he had previously acted as an arbitrator in arbitrations to which Chubb was a party, including appointments on behalf of Chubb, and that he was appointed in two current arbitrations in which Chubb was involved.

In December 2015, M accepted an appointment from Chubb on an arbitration involving Transocean which also arose out of the Deepwater Horizon explosion ("Reference 2"). In August 2016, M also accepted an appointment as a substitute arbitrator on another claim made by Transocean, but this time against a different insurer on the same layer as Chubb ("Reference 3").

In November 2016, Halliburton learned of M's appointment in References 2 and 3. In the same month, potentially dispositive preliminary issues of policy construction were heard in References 2 and 3. On 29 November 2016, Halliburton's UK lawyers wrote to M, referring to the IBA Guidelines on Conflicts of Interest in International Arbitration and seeking an explanation for the failure to disclose the appointments in References 2 and 3. M responded by email shortly thereafter, saying that he had not made any disclosure to Halliburton at the time of his appointment to References 2 and 3 because it had not occurred to him that he was required to do so, and pointing out that his involvement in the later references had been limited thus far to the preliminary issues as to contractual construction; he concluded by stating that he would be prepared to resign from References 2 and 3 if they were not brought to an end by the preliminary issues.

Halliburton responded by expressing concern as to M's impartiality and suggesting he should resign from Reference 1; Chubb, in the meantime, made clear that it was not prepared to agree to him doing so.

In a further email dated 15 December 2016, M expressed regret that he had not disclosed his appointments in References 2 and 3, if only to avoid any suggestion of a lack of transparency. He indicated that if he were free to act in his own self-interest he would resign as it was of fundamental importance that both parties should have confidence in his impartiality. However, he also recognised that he owed duties not just to Halliburton but also to Chubb, and that he had undertaken to serve as Chair of the Tribunal in Reference 1 until it was completed. He suggested that the parties should attempt to agree the identity of a suitable successor, but that if they could not do so then he would have to leave his fate in the hands of the Court.

On 21 December 2016, Halliburton issued a claim form seeking an order that M be removed as an arbitrator in Reference 1, pursuant to section 24(1)(a) of the Arbitration Act 1996. On 17 February 2017, Popplewell J dismissed Halliburton's application. On 1 March 2017, the issues of policy construction in References 2 and 3 were decided in Insurers' favour, thereby disposing of both of those arbitrations.

On 5 December 2017, the Tribunal in Reference 1 found in Chubb's favour. The arbitrator nominated by Halliburton declined to join in the award on the basis that the failure to disclose the appointments in References 2 and 3 was inconsistent with the parties' entitlement to expect impartiality and even handedness.


In his judgment at first instance ([2017] EWHCD 137 (Comm)), Popplewell J rejected Halliburton's suggestion that M's appointment in References 2 and 3 amounted to a secret benefit from Chubb. He also rejected the argument that the appointments in References 2 and 3 gave rise for concern on account of the possibility that M might learn information in those references which was relevant to Reference 1 but not available to Halliburton, holding that (1) it was undesirable that parties should be constrained in their selection of arbitrators simply because there might be multiple arbitrations arising out of a single event, and (2) the principle of finality would be served if the Tribunal were already familiar with the background to the subject matter of the dispute. Further, the duty under section 33 of the Arbitration Act 1996, requiring the arbitrator to decide the case by reference to the material available to the parties, meant that an arbitrator would not be precluded from sitting on two tribunals each seised with a dispute involving a materially identical subject matter.

Accordingly, Popplewell J concluded that:

  • There was nothing in the acceptance of References 2 and 3 which could give rise to an appearance of bias on M's part against Halliburton;
  • If the acceptance of the References could not give rise to an appearance of bias, then the failure to disclose those references could not, without more, give rise to any equivalent concern.

Popplewell J rejected an alternative route to the revocation of M's appointment through an application of CPR Part 3.1(7), holding that the power of revocation provided by that rule related only to orders made under the Civil Procedure Rules themselves and did not extend to the statutory power of appointment exercised by a High Court judge under section 18 of the Arbitration Act.



In the Court of Appeal, Halliburton contended that Popplewell J had failed to have adequate regard to the unfairness where an arbitrator accepted overlapping references. In particular, Halliburton stressed the potential for an arbitrator to be privy to become privy to information in one reference which is unknown to the other party in a different reference; and also for a party appearing in all references to tailor its approach in the light of the views of the common arbitrator as they became apparent in an earlier reference. The legitimacy of such concerns had led Leggatt J to refuse to appoint the Insured's proposed arbitrator in Guidant LLC v Swiss Re International SE [2016] EWHC 1201, albeit that he had accepted the Insured's submission that the appointment of a common arbitrator did not justify an inference of apparent bias.

The Court of Appeal agreed with Leggatt J that while "inside information" or "inside knowledge" might be a legitimate concern in overlapping arbitrations with a common arbitrator but only one common party, such a state of affairs did not justify an inference of apparent bias: as to that, the starting point remained Dyson LJ's dictum in AMEC Capital Projects v Whitefriars City Estates [2005] 1 WLR 723 at [20]-[21] to the effect that tribunals (like judges) are assumed to be trustworthy and approach every case with an open mind even if they have previously decided the issue before it. It followed that an arbitrator could be trusted to decide a case solely on the evidence before him in the reference in question, even where there was a common party. In so holding, it is notable that the Court of Appeal cited, but did not endorse, Fraser J's conclusion in Beumer Group UK Ltd v Vinci Construction UK Ltd [2016] EWHC 2283 (TCC) that the failure to disclose the use of the same adjudicator in two construction adjudications arising out of the same subject matter amounted to a breach of natural justice rendering the adjudicator's decision unenforceable.

The Court of Appeal did not agree with Popplewell J's view that the analysis of whether there was apparent bias was itself determinative of whether M should have disclosed the fact of References 2 and 3 to Halliburton. The Court noted that authorities such as Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 indicated that an obligation to disclose might arise in circumstances which fell short of those required to support a finding of apparent bias. A similar approach had also been taken in the Privy Council's recent decision in Wael Almazeedi v Michael Penner [2018] UKPC 3.

As a matter of English law, an arbitrator was obliged to disclose facts known to him which might give rise to justifiable doubts about his impartiality.

It followed that a court considering an allegation of non-disclosure after the event should consider two distinct questions:

  • First, whether disclosure should have been made;
  • Second, the significance of that non-disclosure in context.

Application to the Facts

In the present case, the Court of Appeal considered that the circumstances of M's appointment and the fact of overlap between the references could not give rise to justifiable doubts as to his impartiality. Halliburton's suggestion that the further references amounted to the conferment of a financial benefit on M for which he should be disqualified was "wholly inconsistent" with the manner in which international arbitration is conducted and would lead to "absurd" consequences.

The Court considered that, as a matter of best practice in international commercial arbitration and as a matter of law, disclosure should have been made of the further references. In so far as M was under duties of confidentiality in relation to those references, the need to provide disclosure to Halliburton would regarded as an exception to such duties.

Nevertheless, the Court of Appeal agreed with Popplewell J's conclusion that the fair-minded and informed observer considering all the facts would not conclude that there was a real possibility that M was biased. Accordingly. Halliburton's appeal was dismissed.


The Court of Appeal's decision will not provide a complete answer to the question of whether arbitrators can or should accept appointments in overlapping references. Where the Court is being asked to exercise its power of appointment, the concerns about "inside information" or "inside knowledge" alluded to by Leggatt J in the Guidant case may well still militate against the appointment of a common arbitrator to multiple references. However, the decision in Halliburton clearly emphasises that arbitrators are to be trusted to approach each reference solely by reference to the evidence available and submissions made in that reference: thus, and provided appropriate disclosure is made, the decision confirms that there is little practical impediment to an arbitrator being a party-appointed arbitrator in multiple, overlapping references.

' Click here to view 4 New Square's Insurance Blog: Insurance Law London.'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Akin Gump Strauss Hauer & Feld LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Akin Gump Strauss Hauer & Feld LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions