854 THE ADVOCATE
VOL. 77 PART 6 NOVEMBER 2019
The difference between challenges for bias in international and domestic
arbitration settings in British Columbia is subtle but real. It may just be a
matter of optics, but a judge hearing a challenge in a domestic case should
be less reticent in finding a basis for party concern about arbitrator independence
and impartiality. An appropriate test for domestic cases would be
the “real possibility” test from the House of Lords in Porter. The judge hearing
a challenge in an international case must apply the “real danger” test, a
standard that the Attorney General noted is meant to be a higher bar.
The test for bias in the international arbitration context has evolved over
time. While the perception for many years was that a mere suspicion, a
mere possibility or a mere appearance was sufficient, the reality now is that
the courts will require a more substantive foundation for a challenge.
Cogent evidence will be required before an arbitrator is disqualified. Judges
hearing challenges in the context of judicial proceedings or international
commercial arbitrations now require strong evidence that shows a likelihood
of bias or a danger of bias.
The concern of Lord Hewart that justice must manifestly be seen to be
done is giving way to a view that justice should in fact be done, a subtle shift
that calls upon a party bringing a challenge to make a compelling case.33 The
amendment to add the “real danger” test to the B.C. International Commercial
Arbitration Act cements the requirement that there be more than mere speculation
or suspicion to challenge an arbitrator’s impartiality or independence.
The new articulation of the test will cause judges to be more circumspect.
The new test revives the caution from Lord Denning M.R. in Metropolitan
Properties Co. v. Lannon: “Surmise or conjecture is not enough”.34
1. RSBC 1986, c 233.
2. British Columbia, Legislative Assembly, Official
Report of Debates (Hansard), 41st Parl, 3rd Sess, No
113 (12 April 2018) at 3819.
3. 1993 AC 646 Gough.
4. International Bar Association, Guidelines on Conflicts
of Interest in International Arbitration, General
5. See Sam Luttrell, “Australia Adopts the ‘Real Danger’
Test for Arbitrator Bias” (2010) 26:4 Arbitration
International 625 at 628.
6. 2000 EWCA Civ 154 AT&T. This case happened
to involve a challenge to the impartiality of a Canadian
arbitrator in an international case.
7. 2001 UKHL 67 at para 103 Porter.
8. RSBC 1996, c 55.
9. 1955 SCR 3 Szilard.
10. Ibid at 7 emphasis added.
11. 1978 1 SCR 369.
12. Ibid at 391 emphasis added.
13. 1924 1 KB 256 at 259.
14. 2015 SCC 25 Yukon Francophone School Board.
15. Ibid at para 25.
16. 2007 SCC 25 Teskey.
17. Ibid at para 28.
18. 2002 SCC 55 Burke.
19. Ibid at para 65.
20. 2005 FCA 262.
21. Ibid at para 36.
22. Canadian Union of Postal Workers v Canada Post
Corporation, 2012 FC 975 at para 22.
23. Gale v Canada (Solicitor General), 2004 FCA 13 at
24. Arbitration Law of Canada: Practice and Procedure,
3rd ed (New York: JurisNet, 2017) at 410.
25. 2016 ONSC 604.