Newcastle United Football Company Ltd v Football Association Premier League Ltd & Ors

An arbitrator should be removed under section 24(1)(a) of the Arbitration Act 1996 only where the circumstances, assessed objectively at the hearing, would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The duty to disclose is wider than the circumstances ultimately justifying removal. Non-disclosure may support an inference of apparent bias, but does not automatically establish it. Past professional work, arbitral appointments and private communications must be assessed in their factual context and cumulatively. The International Bar Association Guidelines are a practical consideration, not English law. Arbitration claims ordinarily remain private, and the contractual nature of the arbitration and the confidentiality agreed by the parties may outweigh general public interest in open justice.

Newcastle United Football Company Limited applied under section 24(1)(a) of the Arbitration Act 1996 for removal of Michael Beloff QC as chair of an arbitral tribunal. It also sought a public hearing under CPR rule 62.10(1). The arbitration concerned whether the Kingdom of Saudi Arabia would be a Director having Control under Section A of the Football Association Premier League’s Rules.

The challenge relied on earlier advice given by the proposed arbitrator to the Premier League, other appointments involving its solicitors, non-disclosure, and private communications concerning recusal and disclosure. The court first directed that the applications be heard privately and then determined whether the cumulative circumstances gave rise to justifiable doubts as to impartiality.

1. Private hearing. The default under CPR rule 62.10 is that arbitration claims are heard privately. The parties’ agreement to confidential arbitration is not concerned only with commercial secrets; it protects the privacy of the parties, dispute, evidence and arguments. Public interest in the underlying football dispute, or in specialist arbitration practitioners hearing the argument, did not justify departure from that default. The contractual arrangements were private and did not constitute a public law regulatory relationship.
2. Applicable test. Section 24(1)(a) incorporates the common-law apparent-bias test: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The assessment is objective and must be made by reference to the circumstances existing when the application is heard. The observer is neither unduly suspicious nor complacent and considers the whole evidential and contextual picture.
3. Disclosure and guidelines. An arbitrator must disclose matters that could arguably lead the observer to conclude that there was a real possibility of bias. The disclosure duty is wider than the circumstances requiring removal. The International Bar Association Guidelines may provide a practical benchmark, but they do not have the force of English law. Confidentiality and privilege may prevent disclosure, in which case the arbitrator may have to decline the appointment if necessary consent is unavailable.
4. Application. The 2017 advice concerned Section F of the Rules, not the logically prior Section A issue that formed the subject of the arbitration. The court accepted the evidence that the advice did not address the definitions of Director or Control. The advice was more than three years old, unrelated to the arbitration and involved no continuing relationship. The other appointments did not establish financial dependence or a disclosable pattern. The private communications were largely directed to obtaining consent to disclose privileged material; the requests to PLL alone were errors of judgment, but did not establish apparent bias in context.
5. Cumulative assessment and disposal. The circumstances did not acquire greater weight cumulatively than they had individually. The fair-minded and informed observer would take account of the arbitrator’s experience, reputation, lack of financial dependence and the pressured circumstances. No real possibility of bias was established. The section 24 application was dismissed.

First-instance decision. The judgment states that the hearing was directed to take place in private; it does not identify any prior appellate decision in the same proceedings.