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An arbitrator must promptly disclose any conflict, including conflicts
that arise or come to the arbitrator’s attention after a proceeding begins.
Conflicts may be waived on full disclosure by the arbitrator and on the
agreement of the parties to have the arbitrator continue.
Full disclosure means the provision of the material, pertinent, salient or
essential facts, but does not mean the provision of every fact that supports
an allegation of bias. Which facts must be disclosed will depend on the
unique circumstances of each case, but arbitrators should err on the side of
providing more facts than fewer.
If a party feels further facts are necessary before it waives its right to
claim a reasonable apprehension of bias, it is free to make further inquiries
of the arbitrator. While the party is under no obligation to do so, it may be
prudent to make further inquiries prior to waiving its right to object, as the
objection must be made in a timely way. As this case demonstrates, a
party’s conduct in first waiving the right to object, and then objecting after
being unsuccessful in the arbitration, will be viewed with skepticism.
1. 2017 BCCA 433 Atlantic (CA).
2. Atlantic Industries Limited v SNC-Lavalin Constructors
(Pacific) Inc, 2017 BCSC 1263 Atlantic (SC).
3. Ibid at para 23; Atlantic (CA), supra note 1 at paras
4. Atlantic (CA), supra note 1 at para 66.