Independence and impartiality: Australia’s arbitrator bias test

Abstract

Abstract This article examines Australia’s arbitrator bias test to reveal its underlying contradictions and ambiguity and suggests that the legislation is amended to remedy these flaws and ensure Australia stays in line with international best practice. In 2010, section 18A of the International Arbitration Act 1974 (Cth) introduced the arbitrator bias test into Australian statute. The provision failed to specify both limbs of the test and relied on Gough, an outdated English case. This produced two opposing decisions from Australia’s federal judiciary: Sino Dragon and Hui. The uncertainty of Australia’s arbitrator bias test strikes at the heart of the process as the independence and impartiality of arbitrators is a fundamental pillar of international commercial arbitration. After critically analysing the progression of England’s approach to the arbitrator bias test over the past century to date, I conclude that the inherent unclearness of Australia’s approach needs to be remedied by the real possibility test being codified in Australian statute. This test reflects the Australian federal judiciary’s most recent approach. My analysis also reveals it is the most appropriate test. By clarifying Australia’s arbitrator bias test those associating with Australia’s international commercial arbitration system have the requisite certainty and clarity to engage with ease.