Repeat Appointments And Perceived Bias In Sector-Specific Arbitration : A Conflict Screening Framework

Introduction

The legitimacy of arbitration is drawn from the confidence of the parties in the neutrality of the tribunal. However, when the sectors depend on a small pool of technical specialists what happens is that the same arbitrator is often appointed repeatedly for the same party or even by different companies within one corporate group. But just because a repeat appointment has taken place does not amount to partiality, it may reflect expertise, efficiency and legitimate preference for consistent decision-making. What it surely creates is a structural concern. When an arbitrator receives a fair share of work or income from one specific appointing group, it may often be perceived as having an incentive to favour it, while the counterparty who appears once has neither comparable information nor comparable influence.  The law then considers the consequence of the appearance of bias as a legal matter and not a matter of proof of actual bias.

It is particularly serious in disputes involving construction, infrastructure, insurance, and energy, where contingent long-term arrangements, standard form dispute rules, public sector actors, and specific expertise mean that the number of appointments is limited.

KEYWORDS

Repeat appointments, arbitrator bias, conflict of interest, disclosure duty, construction arbitration, challenger of arbitrator, conflict screening.

Legal Provision

The Arbitration and Conciliation Act 1996

Section 12(1)-(2), with the Sixth Schedule, requires an intending arbitrator to disclose in writing any matter that is likely to give rise to justifiable doubts as to independence or impartiality. The duty is ongoing, and under section 11(8) the appointing court/authority shall have regard to the disclosure. Section 12(3)-(5), with the Fifth and Seventh Schedule, establishes two levels of circumstances, which give rise to justifiable doubts as to independence or impartiality and are thus ground(s) of challenge - there is an item 22 which applies to two or more appointments by a party or its affiliate in the previous three years, and an item 24 which applies to service in a different arbitration in relation to a related matter involving the same party or its affiliate. Challenge is under section 13, 14 and 34: a challenge should be filed within 15 days, the tribunal considers it initially and an unsuccessful challenge can be filed under s 34 after the award; under s 14 the court considers if a mandate has ended.

1. Institutional Rules

Under ICC Rules 2021, LCIA Rules 2020, SIAC Rules 2025 and UNCITRAL Rules 2013, continued declaration of facts that might lead to concerns. The challenging period is 30 days (ICC), 14 days (LCIA), 15 days (SIAC, UNCITRAL), which is the choice of institution or appointing body, rather than the jurisdiction challenged. Tribunal.

1. The Arbitration Act 1996 (UK)

Section 23A creates a statutory obligation and a continuing obligation on arbitrators to disclose facts which might reasonably be expected to give rise to justifiable doubts as to their impartiality (Halliburton). Section 24(1)(a) applies where such doubts are proved, and section 73 prevents a party that makes no objection from objecting later on.

Legal Analysis

1. Repeat Appointment: a legitimate practice and a legitimate concern

Two theories are put forward. The sceptical theory maintains that repeat appointment results in economic bias: the arbitrator's future time, it is said, is at the discretion of a repeat player, and repeat players tend to have the advantage in dispute-resolution systems. This concern is heightened in situations where a "professional" appointing party exists, such as an insurer or a state utility, and the other party makes only a one-off appearance. The sceptical argument can also be couched in terms of structural bias, concerns about which the ICC has addressed in its commentaries (discussing ICC arbitration as opposed to maritime and commodities arbitration, where multiple appointments are more common).

Conversely, complete neutrality and ignorance of conflict would only serve to negate what ought to be available to a party. The present approach therefore adopts the gradualism of the legal doctrine: transparency by the means of disclosure, situational consideration of whether conflict has arisen, and bright-line rule against structural conflict.

1. Disclosure duties

The Indian law equivalent requires an individual approached for appointment to disclose in writing in the Sixth Schedule format 'any factor that is likely to give rise to justifiable doubts as to independence or impartiality' and 'any factor that would affect the ability to complete the arbitration within twelve months', until the proceedings terminate. The Fifth Schedule captures two types of repeat appointment: (1) (in item 22) two or more appointments by the same party or its affiliate within three years; and (2) (in item 24) an appointment as arbitrator within three years, (current or very recent) service as arbitrator in another arbitration on a related matter involving the same or an affiliate. Two interpretative issues emerge.

First, as regard item 22, whether a prima facie two appointments include the appointment under consideration, it is interpreted that the item is engaged only by the third appointment, although the wording affords a more literal interpretation. Second, whether by 'affiliate', the list of possible affiliates can extend to every company of a corporate group - as the IBA Guidelines adopt. How Indian courts will apply that extent of inclusiveness to billion-dollar conglomerates, special purpose vehicles and state-owned companies is yet to be clarified.

And the Sixth Schedule format is designed to be relationship- and workload-based, not to mandate a separately-dated indicator of how many appointments emanate from a given party or group. Thus the Sixth Schedule disclosure depends on how the arbitrator interprets item 22. Since the English equivalent is now a statutory, mandatory and ongoing obligation, the content of the disclosure rests on how the arbitrator interprets the Sixth Schedule disclosure requirements and the scope of the phrase 'any factor'.

1. Institutional Rules

Institutional rules adopt broadly similar disclosure standards but differ in the challenge window and, more significantly, in who decides the challenge.

1. Sector specific appointments

Construction: Construction disputes depend on delay analysis, quantum and technical evidence and skills, and ultimately find expression in a small group of quantity surveyors, engineers and construction lawyers. Employers and contractors are in evidence time and again, disputes appear again and again in relation to contracts based on a common set of standard forms and intermediaries (claims consultants, dispute boards) may determine who is appointed. The risk for an employer is illustrated by Cofely - in proceedings instigated by the employer it was found that an arbitrator was to be disqualified for apparent bias because he had obtained 18 per cent of his appointments and 25 per cent of his income from cases involving one claims consultant - yet it had been accepted in earlier litigation that the claims consultant had 'manipulated' appointment procedures. Previous service as an adjudicator or dispute board member in respect of the same project raises the concern of previous involvement in the case [Fifth Schedule, item 16] and related-issue service [item 24].

Infrastructure: In infrastructure, the risk is different. It is not the arbitrator, but the appointment structure. State-owned companies are repeat parties to contracts, with standard clauses that have traditionally entrusted appointment to an officer of the authority or limited selection to a panel of retired officers.The Supreme Court shifted from acquiescence to curated panels in Voestalpine and CORE-I, to disapproval in CORE-II, on grounds of equal treatment. Repeat appointment from a closed list of the authority's own retired officers remains the paradigm, where perception and structure are aligned. Bharat Broadband, born out of a public broadband infrastructure contract, establishes the principle that illegibility cannot be waived ex post by conduct.

Insurance: Insurance and reinsurance arbitration in the London-market Bermuda Form has a small set of arbitrators, and it is not uncommon for one to be appointed in multiple references stemming from the same event or across the levels of the programme. In that context, Halliburton for the Deepwater Horizon had held that concurrent appointments may need to be disclosed; the result depends on the relevant industry standard.

Energy:Energy disputes involve long-term standard form contracts, and a limited number of repeat parties associated with the state. Where, as with a state utility that has power purchase agreements with a large number of generators, numerous arbitrations are brought on the same issues or related issues (such as tariffs and change in law issues), then the applicability of item 24 of the Fifth Schedule and item 3.1.5 of the IBA Orange List is brought to the fore. 86(1)(f) of the Electricity Act, 2003 also provides that State Commission shall refer disputes between licensees and generating companies for arbitration, which is the institutional channel where appointments may become concentrated.

Case Laws

1. Halliburton Co. Vs. Chubbs Bermuda Insurance Ltd. (2020)

Halliburton settled a claim under a Bermuda Form policy following Deepwater Horizon. The same arbitrator accepted nominations in related references arising from the same incident, with Chubb as the common party, without disclosure. The UK Supreme Court held that arbitrators should disclose any circumstances that may reasonably give rise to justifiable doubts, and that overlapping nominations with one common party may do so. The arbitrator breached that duty, but, because a fair-minded and informed observer would not have thought there to be a real possibility of bias, the arbitrator was not removed. The case underscores that the disclosure duty today is set out in section 23A and that the customs of the trade inform the analysis.

1. Cofely Ltd. Vs. Bingham (2016)

Cofely were in arbitration with a claims consultant, Knowles, over a success fee. The sole arbitrator gave that he gained 18 per cent of his appointments and 25 per cent of his income from disputes with Knowles and responded defensively to Cofely's enquiries. Hamblen J ordered removal on the ground of justifiable doubts about the arbitrator's impartiality, pursuant to s 24(1)(a) of the Arbitration Act 1996. This is the unusual case of removal based upon repeat appointments, where the quantified economic dependence, influence of the appointing party and the arbitrator's reaction to the enquiry were all relevant.

1. HRD Corp. (Marcus Oil & Chemical Division) vs. GAIL (India) Ltd. (2018)

In the fourth HRD-GAIL arbitration over a long-term wax supply agreement, HRD attacked the arbitrator and GAIL's nominee on some Fifth Schedule items, including items 22 and 24. SC held the Schedule items arise from IBA Guidelines and should be applied purposively. There is a Fifth Schedule circumstance and accordingly one should inquiry into this circumstance on the facts in section 13 and (postaward) 34. Fifth Schedule does not itself say 'disqualified', and HRD's eligibility in this arena test is our working case: items 22 and 24 alerts, not outright disqualifications.

1. Central Organisation for Railway Electrification vs. ECI-SPIC-SMO-MCML (JV) 2024 (CORE-II)

The case involved a public authority's contractual control over appointment through a curated panel or unilaterally designating one arbitrator. The majority (Chandrachud CJI, Pardiwala and Misra JJ.) struck down these agreements via three grounds: (i) divergent treatment of arbitrators conflicted with the basic requirement of equality in section 18, (ii) especially where the public authority is a signatory, such treatments cannot be tolerated under Article 14, and (iii) curated panels would not be tolerated in international commercial arbitration either. The majority overruled Voestalpine and CORE-I prospectively.Roy J. and Narasimha J. formed a separate opinion, differing on the first two grounds (but not the third).

PRACTICAL IMPLICATIONS

Corporate groups and in-house counsel: Because the Schedules and the IBA Guidelines look to affiliates, appointment history must be monitored at group level: a group nominating the same arbitrator through different subsidiaries may adopt item 22 and Orange List 3.1.3 even though no one appoints twice. Late-developed conflict emerges with a bite when you have to take out arbitrators mid-arm, a section 34 challenge or nudge against enforcement.

Arbitrators: Particularise disclosure: no. of appointments by party, affiliates and counsel, dates and subject matter, and the proportion of fees earned from one source, as Cofely demonstrates.

Institutions, courts and drafters: Institutional appointment provides a gatekeeper function that ad hoc appointment does not, and courts naming an arbitrator under section 11 should seek the Sixth Schedule application. Post-CORE-II contracts should appoint sole arbitrator institutions, specify disclosure to cover affiliates and counsel, and provide caps on disclosure of appointment data notwithstanding the privilege.

Conclusion

Repeat appointment is not by itself, a ground for automatic disqualification. The distinction is a structural conflict (governed by the rule of ineligibility and equal-treatment rule) versus a history-based conflict (governed by the rule of disclosure and challenge). Indian procedure maintains the first-instatement nature of a challenge with the challenged tribunal and the fifth schedule grounds are not decided until after the award, unlike the leading institutional regimes.Sector attributes explain repeat appointment, but are still compatible with particularised disclosure. It is a function of sector attributes that avoidability is unachievable in sectors that depend on small pools of specialists, but bias, or conflict, is manageable. The best controls are those that are enacted before the tribunal is constituted: screening at the group level, particularised disclosure and contractual appointment mechanisms that do not give control to just one party.

ENDNOTE/REFERENCE

1. The Arbitration and Conciliation Act, 1996, s.12(1)&(2), Sixth Sch., No. 26, Acts of Parliament, 1996 (India).
2. The Arbitration and Conciliation Act, 1996, s. 11(8), No. 26, Acts of Parliament, 1996 .
3. The Arbitration and Conciliation Act, 1996, S.12(3)–(5), Fifth Sch., Seventh Sch., No. 26, Acts of Parliament, 1996 (India).
4. The Arbitration and Conciliation Act, 1996, s. 13, No. 26, Acts of Parliament, 1996 (India).
5. The Arbitration and Conciliation Act, 1996, s.14, No. 26, Acts of Parliament, 1996 (India).
6. The Arbitration and Conciliation Act, 1996, s. 34, No. 26, Acts of Parliament, 1996 (India).
7. The Arbitration and Conciliation Act, 1996, s. 18, No. 26, Acts of Parliament, 1996 (India).
8. INDIA CONST. art. 14.
9. International Chamber of Commerce [ICC], Rules of Arbitration, (eff. Jan. 1, 2021).
10. London Court of International Arbitration [LCIA], Arbitration Rules, (eff. Oct. 1, 2020).
11. Singapore International Arbitration Centre [SIAC], Arbitration Rules, (eff. 2025).
12. United Nations Commission on International Trade Law [UNCITRAL], Arbitration Rules (as revised in 2013), G.A. Res. 68/109, U.N. Doc. A/RES/68/109 (Dec. 16, 2013).
13. Cofely Ltd. v. Bingham [2016] EWHC 240 (Comm) (Eng.).
14. HRD Corp. (Marcus Oil & Chem. Div.) v. GAIL (India) Ltd., (2018) 12 S.C.C. 471 (India) (decided Aug. 31, 2017).
15. Org. for Ry. Electrification v. ECI-SPIC-SMO-MCML (JV), 2024 INSC 857 (India) (decided Nov. 8, 2024) (CORE-II
16. Halliburton Co. v. Chubb Bermuda Ins. Ltd. [2020] UKSC 48, [2021] A.C. 1083 (appeal taken from Eng.).
17. Amit George & Rishabh Dheer, NPAC's Arbitration Review: Past Appointments of an Arbitrator – The 'Three Strike' Rule Under Schedule V, Bar & Bench (June 10, 2019), https://www.barandbench.com/columns/appointment-arbitrator-the-three-strike-rule-schedule-v.