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Go back to gough: The need for the 'real danger' test for arbitrator bias in the common law seats of the Asia Pacific

Luttrell, S.R. (2008) Go back to gough: The need for the 'real danger' test for arbitrator bias in the common law seats of the Asia Pacific. Asia Pacific Law Review, 16 (2). pp. 157-175.

Abstract

The practice of challenging arbitrators for bias is on the rise in international commercial arbitration. Bias challenges are now used tactically to delay arbitral proceedings and deprive the other side of the arbitrator of their choice. There are two main streams of common law authority on the test to be applied to an allegation of apparent bias: the Sussex Justices ‘reasonable apprehension’test and the Gough ‘real danger’ test. At different times and places, both tests have been applied to arbitrators. This paper traces the English development of the competing tests and their uptake in the common law states in the Asia Pacific region that have adopted the UNCITRAL Model Law on International Commercial Arbitration (1985). It concludes with legal and policy-based arguments for the application of the Gough ‘real danger’ test to arbitrators in international disputes.

Publication Type: Journal Article
Murdoch Affiliation: School of Law
Publisher: LexisNexis
Copyright: 2008 Lexis Nexis
Publishers Website: http://www.cityu.edu.hk/slw/aplr/
URI: http://researchrepository.murdoch.edu.au/id/eprint/8269
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