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An arbitrator's failure to disclose an unrelated engagement with counsel for one party does not objectively create a reasonable apprehension of bias under the UNCITRAL Model Law.
The Court of Appeal for Ontario allowed an appeal concerning an international commercial arbitration award.
The application judge had set aside the award due to a reasonable apprehension of bias by the arbitrator, who had accepted a second, unrelated arbitration engagement from the appellants' counsel without disclosure to the respondents.
The Court of Appeal held that the application judge erred by applying a subjective test for disclosure and bias, rather than the objective test mandated by the UNCITRAL Model Law.
The Court found no breach of the arbitrator's legal duty to disclose and no reasonable apprehension of bias, as the second arbitration involved no common parties or overlapping issues, and the arbitrator was not aware of the parties' subjective disclosure expectations.
The matter was remitted to the Superior Court to address other grounds for attacking the award.
