Clifford Chance – -Once appointed, an arbitral tribunal will generally retain its authority to determine a dispute until it has issued a final award and has no further duties. The tribunal’s authority may come to an end before then if the parties agree to revoke it or if the arbitrators resign of their own volition. In the absence of the other parties’ or the tribunal’s agreement, a party can seek the court’s help to oust an arbitrator. Section 24 of the Arbitration Act 1996, which applies to arbitrations seated in England and Wales, empowers the court to remove an arbitrator if the applicant can show that substantial injustice is or will be caused to it and if it can make out one of several grounds for the arbitrator’s removal. The most significant ground is that there are circumstances giving rise to justifiable doubts as to the arbitrator’s impartiality.
The right to challenge an arbitrator can be lost. Pursuant to Section 73 of the act, the applicant must raise an objection forthwith or within such time as is allowed by the arbitration agreement. An objection can no longer be raised if the applicant continues to take part in the arbitral proceedings, unless it can show that it did not know and could not with reasonable diligence have discovered the grounds for the objection at the time that it took part in the proceedings.
The High Court decision in Sierra Fishing Company v Farran ( EWHC 140 (Comm)) provides guidance on the English courts’ approach to determining an application to remove an arbitrator under Section 24 of the act and considers the circumstances in which the right to challenge might be lost under Section 73
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