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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AT&T Corporation & Anor v Saudi Cable Company [2000] EWCA Civ 154 (15 May 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/154.html Cite as: [2000] EWCA Civ 154

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Case No: QBCMF 1999/1200/A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
COMMERCIAL COURT (MR JUSTICE LONGMORE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 15 May 2000

38. As was pointed out in Locabail (at p.74) the Gough approach has not commanded universal approval elsewhere. In Scotland, Australia and South Africa, there has been preference for the reasonable suspicion or reasonable apprehension test, "which may be more closely in harmony with the jurisprudence of the European Court of Human Rights" (see Locabail at p.74f). While Gough is binding on courts in this jurisdiction, Sir Sydney Kentridge argues that the test laid down in Gough is not strictly binding where it is an arbitrator conducting an arbitration, particularly an international arbitration, who is involved. Sir Sydney Kentridge urges this court not to extend an approach which has been rejected in other jurisdictions in relation to arbitrators when there is no need to do so. He contends that reasonable apprehension or suspicion of bias provides a better test. He points out that the test in the new Arbitration Act of 1996, s.24, was introduced in order to conform with article 12 of the Uncitral Model Law (it omits the word "independent"). In addition, he submits that the test of "justifiable doubt" contained in section 24 of the 1996 Act is closer to the concept of "reasonable suspicion" than the "real danger" Gough test.

39. In Laker Airways Inc v FLS Aerospace Limited [1999] 2 Lloyds Report 45 at pp.48/49, Rix J applied the Gough test in an arbitration case. He was right to do so. Lord Goff had stated in categoric terms that the real danger test should apply to bias on the part of arbitrators (see p.669H-670D). He had indicated that it was desirable that that test should be applicable to all cases of apparent bias, "whether concerned with justices or members of other inferior tribunals, or with jurors or with arbitrators". Lord Goff did not deal separately with international arbitrations, but there is no principle on which it would be right in general to distinguish international arbitrations from the other categories of situations to which Lord Goff referred, when the arbitration is, as here, governed by English Law.
40. Sir Sydney Kentridge's arguments for applying what he argued was a lower threshold to arbitrations lacked conviction. Assuming, without accepting, that the reasonable suspicion test provides a lower threshold than the real danger test, it would be surprising if a lower threshold applied to arbitration than applied to a court of law. The courts are responsible for the provision of public justice. If there are two standards I would expect a lower threshold to apply to courts of law than applies to a private tribunal whose "judges" are selected by the parties. After all, there is an over-riding public interest in the integrity of the administration of justice in the courts. It is justice in the courts to which Lord Hewart CJ was referring in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259, when stating his famous aphorism, which is accepted throughout the common law world, that it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".
41. The different phrases which have been used to describe the correct test are all trying to give effect to this principle identified by Lord Hewart. This is why the application of any of the different descriptions of the threshold are likely, in practice, to produce the same result. The word "real" is linked to "danger" so as to distinguish between a real and a fanciful danger. The word "reasonable" is linked to the word "suspicion" for the same reason. In both cases it is appreciated that there is a need to avoid quashing or invalidating decisions when there is no reason to do so. As is apparent from the facts of this case, where millions of dollars have already been incurred in the costs of the arbitration and there have been three decisions, it would achieve injustice not justice if the arbitration awards were to be set aside if such a course were not justified. It is not to be forgotten that SCC is an entirely innocent party and it is entitled to have its interests considered when deciding whether to set aside the awards. In ex parte Dallaglio Simon Brown LJ helpfully identified nine propositions which are relevant to the application of the Gough test. In the seventh he indicated that the court "is no longer concerned strictly with the appearance of bias but rather with establishing the possibility there was actual although unconscious bias" (at p.152). In the same case Sir Thomas Bingham MR, at p.162 stated that the Gough decision shows:
"that the description `apparent bias' traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is able to examine all the relevant material and satisfy itself there was no danger of the alleged bias having in fact caused injustice, the impugned decision will be allowed to stand. The famous aphorism of Lord Hewart CJ .... is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias".
42. Sir Sydney Kentridge criticised both of these statements. Mr Pollock is more accurate when he submits that both the real danger and the reasonable suspicion tests subsume the test laid down by Lord Hewart. Unless there is some foundation for saying that justice has not been done, it is seen to be done. We do not understand the statements in ex parte Dallaglio which are criticised to be seeking to say anything different. The important point for this appeal which Simon Brown LJ identified is that, when deciding whether bias has been established, the court personifies the reasonable man. The court considers on all the material which is placed before it whether there is any real danger of unconscious bias on the part of the decision maker. This is the case irrespective of whether it is a judge or an arbitrator who is the subject of the allegation of bias.
43. Was there a real danger here, viewing the matter objectively, that Mr Fortier was predisposed or prejudiced against AT&T because he was a non-executive director of Nortel? As to this, adopting our role of personifying the reasonable man, I consider that Longmore J was entitled to come to the decision which he did for the reasons he gave. In coming to my conclusion, I take into account that:
(a) Mr Fortier is an extremely experienced lawyer and arbitrator who, like a judge, is both accustomed and who can be relied on to disregard irrelevant considerations. In saying this we make it clear we do not attach any importance to the fact that Mr Fortier at all times believed himself to be acting appropriately. He must be judged by objective standards.
(b) There is no reason to reject Mr Fortier's statements in the letter of 20 September 1999 that he was entirely unaware of the TEP-8 project until December 1998 and the TEP-6 project until he became involved in the arbitration process. Until he was aware of the projects there could, of course, be no possibility that they could prejudice him and so no obligation to disclose his connections with Nortel.
(c) Any benefit which could indirectly accrue to Nortel as a result of the outcome of the arbitration would be of such minimal benefit to Mr Fortier that it would be unreasonable to conclude that it could influence him.
(d) Mr Fortier's involvement with Nortel as a result of his non-executive directorship was limited. It was accurately described as an incidental part of his professional life. The role of non-executive directors can differ but the nature of Mr Fortier's directorship is well illustrated by his letter of 20 September 1999.
(e) Mr Fortier did not attach importance to his involvement with Nortel. This is illustrated by his readiness to resign his directorship when he was challenged by AT&T.
(f) Mr Fortier conducted himself in the course of the arbitration in a manner which provided no support for any suggestion that he was prejudiced and the contrary has not been suggested.
44. It was extremely unfortunate that the mistake about the directorship meant that it was not disclosed, but, on the evidence which is available, that innocent non-disclosure provides the flimsiest of arguments that the indirect interest of Mr Fortier in Nortel would or might affect the way he performed his responsibilities as an arbitrator. I therefore reject the criticism of the judge's decision on bias.

Misconduct
45. S.23(1) and (2) Arbitration Act 1950 provide:
(1) "Where an arbitrator or umpire has misconducted himself or the proceedings the High Court may remove him.
(2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the High Court may set the award aside."
46. It will be noted from the terms of s.23, that the High Court is given a discretion to remove an arbitrator and to set aside an award subject to it being established that the arbitrator has misconducted himself or the proceedings. Misconduct can take many forms. For there to be the necessary misconduct to enable the court to exercise its powers under s.23, there need not be any culpable or blameworthy behaviour on the part of the arbitrator. It can be sufficient if there is a "procedural mishap".
47. What is relied upon here by AT&T is an asserted non-compliance by Mr Fortier with the terms of the arbitration agreement. In particular the failure to comply with Article 2.7 of the ICC Rules, to which we have already referred. Non-compliance with the terms of an arbitration agreement can amount to misconduct. (See the judgment of Diplock J in Margulies Brothers Limited v Dafnis Thomaides & Co (UK) Limited [1958] 1 Lloyds Rep 250 at 253 where he reiterated that "misconduct" of an arbitrator includes any failure by the arbitrator to comply with the terms, express or implied, of the arbitration agreement.)
48. It is arguable that s.23 refers only to "misconduct" after the arbitrator has been appointed. Here the initial complaint of non-disclosure relates to Mr Fortier's conduct before he was appointed. However, this is of no practical significance because the obligation to disclose is a continuing obligation and AT&T is entitled to rely on non-disclosure at any one of the three stages to which I have already referred identified by Sir Sidney Kentridge.
49. Turning to the express provision of the ICC Rules which provides that a decision of the ICC Court should be final, I do not accept the view of Longmore J that the finality provision means that the English courts have no power to review the decision of the ICC Court. The finality provision does not operate to exclude the English court's jurisdiction under s.23 of the 1950 Act. Accordingly, Longmore J was entitled to consider whether there had been "misconduct" by breaching the terms of the arbitration agreement. When doing so the court, if required to interpret the ICC Rules, would naturally pay the closest attention to any interpretation of the ICC Rules adopted by the ICC Court, but the English courts retain their jurisdiction to determine whether the ICC Rules have been breached when entertaining an application to remove for alleged misconduct.
50. In this case, the decision of the ICC Court provides no assistance because the decision was not a reasoned one. We do not know the basis upon which the complaint of AT&T was dismissed.
51. Article 2.7 and the arbitrator's declaration refer to "independence" and do not refer to "impartiality". This is in contrast to the Unicitral Model Law on international commercial arbitration as adopted by the United Nations Commission International Trade Law of 21 June 1985. Article 12 of the Model Law requires the person approached with regard to a possible appointment as an arbitrator to "disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence". In most situations it will be because of a connection or other relationship with a party that the appointment of an arbitrator will be capable of challenge on the grounds of a lack of impartiality. Where this is the situation, the potential arbitrator will not be independent of the parties and will therefore clearly be subject to the express requirement of Article 2.7. I do not consider that it would be right to approach the interpretation of Article 2.7 in a narrow and restrictive manner. However, in this case it is not necessary to express any concluded view as to the application of Article 2.7 to a potential arbitrator whose alleged lack of independence is due to a connection with a third party. If, as I consider the position to be here, Mr Fortier is not disqualified from acting as an arbitrator on the grounds of bias at common law, I cannot see how he can be said to lack the necessary independence to which Article 2.7 refers.
52. AT&T's primary complaint about Mr Fortier is that they would not have selected him as an arbitrator because they would not have wished to disclose confidential information to even a non-executive director of a competitive rival. Sir Sydney Kentridge stressed in his submissions the dangers to AT&T of information being made available to Mr Fortier when he owed the duties of a non-executive director to Nortel. If an arbitrator disclosed confidential information to a competitor of a party to an arbitration in the course of the proceedings, he would certainly be open to a charge of misconduct. But this misconduct would not involve a breach of any obligation to be 'independent'. As Sir Sydney developed his submissions, it became increasingly clear that, while AT&T were complaining of bias, their concerns were equally, if not more strongly, focused on their need to preserve confidentiality. Article 2.7 and the arbitrator's declaration are not addressing this need. The need for confidentiality, which can be critical in an arbitration, does not depend on Article 2.7, but on the duty of any arbitrator not to breach the obligations of confidence which he owes to the parties to the arbitration.
53. Mr Fortier was under the impression he had given a complete CV. Because of the error AT&T was not aware of his connection with Nortel. This connection was obviously a matter of which AT&T would have wished to be aware before it agreed to Mr Fortier's appointment. If it had been, it would have been perfectly reasonable for AT&T to indicate that it would prefer an arbitrator who was not a non-executive of Nortel because of its concerns as to confidentiality. AT&T was deprived of this opportunity, but the ICC Rules do not provide any support for an allegation that Mr Fortier was guilty of misconduct because of the error in the CV.
54. In any event, Mr Fortier having been appointed an arbitrator and the arbitration having reached the stage it has, it would be inappropriate, in the absence of bias, to set aside the awards or to remove Mr Fortier. Furthermore, although AT&T's concerns as to the need to preserve confidentiality are understandable, in the case of an arbitrator as experienced as Mr Fortier, the risk of his actually making disclosure of confidential information to Nortel, consciously or unconsciously, is sufficiently remote to be ignored. In any event, Mr Fortier offered to resign his non-executive directorship but, no doubt recognising the reality of the situation, AT&T did not accept this offer. That being so, I find this allegation to be lacking in conviction.
55. AT&T is unable to show any grounds for setting aside the awards or removing Mr Fortier based on bias or misconduct. This appeal is, accordingly, dismissed.
LORD JUSTICE POTTER :
56. Save in the minor respect referred to at paragraphs 67-71 below, I agree with the judgment of the Master of the Rolls and would merely add some observations of my own.
Bias
57. The question has been raised on this appeal as to whether in English law the test to be applied on a complaint of bias against an arbitrator in respect of an award should be different from that applied to judges and tribunals in respect of decisions made by them in the course of the public administration of justice. So far as I am aware, it is the first time that an argument that the tests should diverge has ever been advanced. It arises following the decision of the House of Lords in Gough which considered the question of bias in the context of the public administration of justice, but in which Lord Goff of Chieveley expressed the firm opinion that "the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of inferior tribunals, or with jurors or with arbitrators."
58. I respectfully agree with that opinion. It seems to me that, whatever the test should be, and it is clearly laid down in Gough in terms of the "real danger" test, it is desirable that it should apply universally in cases before the English court, where such cases fall to be decided according to English law and no different statutory or contractual test is applicable. Adjudication upon an application to the English court brought under its statutory powers of supervision and intervention in relation to the conduct of arbitrators is itself an aspect of the public administration justice. The fact that the tribunal over which the supervision is being exercised is one whose appointment depends upon the agreement of the parties does not deprive it of that character. There are many persons or bodies who adjudicate in matters of discipline or private dispute, or who otherwise resolve complaints, whose jurisdiction depends on agreement, whether under bilateral agreements, or multilateral agreements such as the rules of clubs, associations, sporting bodies, etc. All such persons or bodies, whether performing judicial or quasi-judicial functions, have a duty to act without bias and, in principle, there seems to me every reason why, absent some differing test or formula expressly or impliedly agreed between the parties, a universal test of bias should be applicable.
59. We have not been referred to any reported decision prior to Gough which suggests that the English court, when faced with an allegation of bias or apparent bias on the part of an arbitrator, has considered that a different test from that said to be appropriate in the case of publicly constituted courts or tribunals should be applied. It is true that, for the reasons, and having regard to the decisions, which troubled the House of Lords in Gough, judges dealing with applications to set aside arbitrations for misconduct on the grounds of bias have faced difficulty in formulating the objective test to be applied: see, for instance, The "Elissar" [1984] 2 Lloyd's LR 84 per Ackner LJ at 89; Bremer Handelsgesellschaft -v- Ets Soules et Cie [1985] 1 Lloyd's LR 160 per Mustill J at 164-5 and [1985] 2 Lloyd's LR 199 per Ackner LJ at 201-2; Tracomin S.A. -v- Gibbs [1985] 1 Lloyd's LR 586 per Staughton J at 595-6.
60. In that last-mentioned case, following a review of the relevant authorities, Staughton J observed:
"In many if not most cases it will make no difference which test is applied. That is so in the present case, and I am content to adopt real likelihood, which appears to lay the heaviest burden on the person alleging bias. But I do not, with great respect share the view of Lord Justice Cross (in Hannam's case) and Lord Justice Ackner (in the Liverpool City Justice's case) that there is little if any difference between the two tests. If it had been necessary to decide the point, I would have followed what was said by Lord Justice Edmund-Davies in the Metropolitan Properties case [1969] 1 QB at p.606:
With profound respect to those who have propounded the "real likelihood" test I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged and that any development of the law which appears to emasculate that requirement should be strongly resisted. That the different tests, even when applied to the same facts, may lead to different results is illustrated by Reg. -v- Barnsley Licensing Justices itself, as Devlin LJ made clear in the passage I have quoted. But I cannot bring myself to hold that a decision may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body."
61. I am bound to say I agree with the observations of Staughton J in relation to the authorities as they then stood and it seems to me that, in propounding the `real danger' test in Gough, Lord Goff was seeking so far as possible to strike the right balance between the `real likelihood' and `reasonable suspicion' tests. Sir Sydney Kentridge argues that in that respect Lord Goff has not avoided a practical dilution of the principle proclaimed by Lord Hewart CJ that justice must manifestly be seen to be done, whereas to have adopted the test of reasonable apprehension or suspicion would not have had such effect.
62. It may well be that adoption of the reasonable suspicion test would afford more comfort to those concerned to preserve the sanctity of Lord Hewart's dictum. However, as it seems to me, the real danger test is intended to be a working test designed to give effect to that dictum, while having regard to substance as well as appearance. In that respect, the remarks of Slade J in R -v- Camborne Justices ex parte Pearce [1955] 1 QB 41 at 52 are salutary:
"Whilst endorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done that it should in fact be done."
Whether or not that is so, I agree with the realism of the post-Gough assessment of Sir Thomas Bingham MR in Ex parte Dallaglio at 162, that the famous aphorism of Lord Hewart now requires qualification in the light of the real danger test. Equally, however, I consider that the need for concern in that respect is more illusory than real.
63. It is not in dispute that reasonable apprehension of bias is a test in which reasonableness is judged by the standards of the reasonable objective observer. That is, in reality, the court itself, embodying the standards of the informed observer viewing the matter at the relevant time, which is of course the time when the matter comes before the court. That last qualification is important because, in judging whether there is bias or apparent bias, the court approaches the matter on the basis of an observer informed as to the facts upon which, and the context in which, the allegation of bias is made. As Lord Goff observed in Gough:
"The law has first to ascertain the real circumstances from the available evidence, knowledge of which would not necessarily be available to an observer at court".
64. This, enables the court to consider the matter on the basis of whether or not the particular matters relied on in support of an allegation of bias were or were not known to the person or tribunal against whom the allegation of bias is made. In observing as he did, Lord Hewart was deploying a maxim which is predominantly concerned with principles of openness and fairness in connection with trial procedures, which entitle a party to impugn the proceedings if breach of such procedures can be demonstrated. If a party alleges reasonable suspicion or real danger of bias as similarly affording a reason to set aside a decision, it is right that the court should investigate the factual basis for the allegation in order to see whether there is any real cause for concern. The time at which to judge whether there is real danger or reasonable suspicion of bias is the time at which the investigating (appellate) court sets out the facts upon which its conclusion is based. It is only by that process that the objective observer, who may earlier have been suspicious for what appeared to be good reason at the time, is in a position to judge whether real danger or reasonable grounds for suspicion in fact exist.
65. Upon that basis I have no doubt that the allegation of apparent bias or the possibility that there was actual, though unconscious, bias (see ex parte Dallaglio at 152) on the part of Mr Fortier fails.
Misconduct
66. Having failed to establish a case of bias or apparent bias, it was necessary for AT&T to establish some other ground of misconduct on the part of Mr Fortier if it wished to invoke the court's jurisdiction to order his removal. In this respect, Sir Sydney relied upon an asserted failure by Mr Fortier to comply with Articles 2.7, 2.8 and 2.9 of the ICC Rules and a separate act of non-disclosure by putting his cross in the first box of the signed Statement of Independence.
67. So far as those three Articles are concerned I do not consider that any breach of them has been established. The only matters which they require the arbitrator to declare are matters going to his "independence" of the parties, or anything which might call that independence into question in the eyes of any of the parties. (Sir Sydney conceded that the word "reasonably" needed to be read in, as qualifying any calling into question of such independence.) "Independence" connotes an absence of connection with either of the parties in the sense of an absence of any interest in, or of any present or prospective business or other connection with, one of the parties which might lead the arbitrator to favour the party concerned. It is the most frequent and obvious ground upon which the court will infer the possibility of antecedent bias, but it is by no means co-extensive with it. The suggestion that, by reason of some other event or circumstance unrelated to independence, the arbitrator has or may have an antecedent predisposition against one of the parties may give rise to a sustainable allegation of bias but it is not one based on absence of independence.
68. Nor, in my view, is there reason to suppose that the ICC intended to impose a specific obligation of disclosure on a wider basis than that of independence: c.f. the wording of Article 12 of the UNCITRAL Rules relating to disclosure which provides:
"(i) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence." (emphasis added)
69. It is also of interest to note that s.24(1)(a) of the Arbitration Act 1996 provides that a party to arbitral proceedings may apply to the court to remove an arbitrator on the ground that:
"Circumstances exist that give rise to justifiable doubts as to his impartiality"

70. In that respect the draftsman appears to have followed the wording of the UNCITRAL Rules but omitting any reference to independence, no doubt on the grounds that the greater includes the less. The question of whether, by that provision in the 1996 Act, the legislature has introduced a statutory definition of bias different in effect from the real danger test in relation to applications brought under s.24(1)(a) remains for future argument.

71. I consider that, outside the field of "independence" covered by the disclosure obligations in Article 2.7, 2.8 and 2.9 and the form of the Statement of Independence, the ICC should be taken as having left the question of disclosure of any matter of possible concern, and in particular the possibility of bias, to the good faith and judgement of the arbitrator. The recognition of antecedent bias or partiality is well recognised as a disqualifying factor going much wider than the issue of independence and is no doubt one which would be recognised by the ICC if any challenge to an arbitrator's impartiality were mounted on that ground. Article 8 permits challenge of an arbitrator to the Secretary-General of the ICC "whether for an alleged lack of independence or otherwise". Thus, it is not in my view necessary to interpret Article 2.7 as extending to a complaint of bias in any wider sense than lack of independence for the purpose of enabling a challenge to be made to the Secretary-General under Article 8 and for the arbitrator to be disqualified by the ICC if such challenge is accepted. Thus, insofar as AT&T invites the court to find misconduct or procedural mishap on the basis of a breach by Mr Fortier of the ICC Rules, I consider it has failed to make out its case.
72. Nonetheless, if I am wrong in that respect, and breach can be demonstrated, it does not seem to me to be one which could possibly justify the removal of Mr Fortier as an arbitrator, or the setting aside of any of the awards made. So far as the non-disclosure of Mr Fortier's directorship of Nortel was concerned, it was entirely inadvertent. Furthermore, as we have held, no suggestion or real danger of partiality arises or has been substantiated. Nor has any disadvantage in the course of the arbitration been demonstrated.
73. Pressed upon the question of what prejudice AT&T had in fact suffered as a result of the non-disclosure, Sir Sydney was obliged to assert what he called the "general prejudice" of having had the matter arbitrated by an arbitrator whom AT&T would not have chosen had it been aware of the matter inadvertently not disclosed. While, no doubt, the purpose of the disclosure rules is designed to enable the parties to confirm their choice of arbitrator on a fully informed basis, the fact that such purpose may have been inadvertently defeated is not in itself sufficient to justify removal of the arbitrator once appointed or the setting aside of awards duly made and untainted by bias. In such cases the court will only take such a step where justice demands it. In my view, no such consideration arises in this case. There is no suggestion that Mr Fortier has acted or would act in breach of confidence, which, as the Master of the Rolls has pointed out, appears to be the principal basis (as opposed to the likelihood of bias), on which AT&T would have objected to Mr Fortier. To set aside the partial awards or to replace Mr Fortier at this stage would be both a costly inconvenience and a substantial injustice to the respondents.
74. I too would dismiss this appeal.
LORD JUSTICE MAY :
75. I agree that this appeal should be dismissed for the reasons given by Lord Woolf M.R. Essentially and in short, the reasons which lead me to this conclusion are that, in my judgment:
(a) the test under English law for apparent or unconscious bias in an arbitrator is the same as that for all those who make judicial decisions and is that to be found in the opinion of Lord Goff of Chieveley in R. v. Gough [1993] AC 646. On this test, bias was not established in this case against Mr Fortier, and that by a long margin.
(b) even if the test propounded by Sir Sydney Kentridge were to be applied, bias would not be established in this case against Mr Fortier, and that by a long margin.
(c) if there was a procedural mishap such as to enable the court to consider whether to exercise its discretion under section 23 of the Arbitration Act 1950, the case on the facts for removing Mr Fortier as arbitrator, or setting aside the awards which he and his fellow arbitrators unanimously made, was so weak that I consider that the court should not do so.
76. I express the third of these reasons in the way that I have, because I thought at one stage during the submissions that the academic case that there was a procedural mishap was quite strong. Lord Woolf M.R. has set out the terms of Article 2.7 of the ICC rules in paragraph 11 of his judgment and the text of the printed Statement of Independence in paragraph 13. I agree that Mr Fortier's non-executive directorship of Nortel may be seen as not calling in question his independence. I also agree that a main plank of AT&T's case concerned the possible disclosure of confidential information to a non-executive director of a competitor, rather than Mr Fortier's independence as arbitrator. But it did seem to me that there was a reasonably persuasive general case that his non-executive directorship "might be of such a nature as to call into question [his] independence in the eyes of [one] of the parties". If AT&T had known of this directorship at the outset, an objection by them to his acting as arbitrator would, in my view, probably have been regarded as reasonable and would have been sustained. They did not know, and I was inclined to think that his unwitting failure to tick the second box in the Statement of Independence could be seen as a procedural mishap. But I do not think that it is necessary to reach a conclusion on this point because, even if it were a procedural mishap, I do not consider that the court should now exercise a discretion in AT&T's favour under section 23 of the 1950 Act.