ARBITRATOR DISCLOSURE: ANALYSIS OF THE APPLICABLE TESTS FOR ARBITRATOR BIAS IN KENYA

Abstract

The essence of effective arbitration is contingent on the impenetrable cloak of trust in the independence and impartiality of the tribunal. Under Section 13(3) of the Arbitration Act 1995 (the Act hereafter), an arbitrator may be challenged ‘only if circumstances exist that give rise to justifiable doubts as to his impartiality and independence.’ The independence and impartiality of arbitrators are validated through pre-appointment disclosures. Nevertheless, ambiguity surrounds what constitutes ‘circumstances that give rise to justifiable doubt’ under the Act and the nature of information requiring disclosure. Lack of exposition under this clause presents an arduous task for the individual arbitrators to determine the appropriate information to disclose and has also spawned inconsistent tests that courts employ in assessing an arbitrator’s potential bias and disclosure duty. This article critically evaluates emerging jurisprudence from Kenyan courts on the applicable test for assessing arbitrators’ bias and the duty of disclosure. The paper furthermore analyses the relevant threshold for evaluating arbitrator bias and duty of disclosure in the UK and the IBA Guidelines on conflict of interest to highlight some key lessons for Kenya. It recommends the real possibility test as the most appropriate test for assessing an arbitrator’s bias and offers other insights regarding the independence and impartiality of arbitrators.