Africa Sourcing Cameroun Limited v LMBS Société Par Actions Simplifiée

An apparent-bias challenge to an arbitral award under section 68 of the Arbitration Act 1996 still requires proof of substantial injustice. Apparent bias does not automatically establish that requirement. The court must assess whether the irregularity was sufficiently serious for substantial injustice to be inferred or whether the outcome might well have been different without it. The statutory test is directed to due process rather than the correctness of the award. An arbitrator’s disclosure duty is assessed objectively and in context, including the nature of the arbitral institution and the professional relationships involved. Section 73 may preclude a challenge where the applicant knew, or could with reasonable diligence have discovered, the grounds of objection and participated without raising them.

The claimants sought to set aside an FCC Board of Appeal award under section 68 of the Arbitration Act 1996, alleging apparent bias by its chair. The award had held that their claims were out of time and refused an extension. The alleged grounds included the chair’s participation in an earlier FCC council meeting, attendance at industry dinners, a professional relationship and prior transaction with a principal of the opposing party, and later involvement in the FCC’s refusal to disclose information.

The court also considered whether the claimants were barred by section 73 from raising objections that could have been discovered earlier. The central issues were whether there had been a disclosure-related serious irregularity, whether substantial injustice followed, and whether the challenge was procedurally precluded.

1. Application dismissed. The court rejected the claim that the chair’s alleged non-disclosure gave rise to justifiable doubts as to impartiality. In the context of a small commodities market and a trade association using experienced industry arbitrators, the matters relied on did not objectively establish a real possibility of bias. The earlier council meeting did not involve acceptance or endorsement of the opposing party’s account. The dinners, professional acquaintance and single prior trade likewise did not require disclosure.
2. Following RAV Bahamas v Therapy Beach Club Inc [2021] UKPC 8, a section 68 challenge requires a serious irregularity causing substantial injustice. The threshold is high and the focus is due process, not whether the award was correct. Even if apparent bias or non-disclosure had been established, substantial injustice would not automatically follow.
3. On the assumed case that there had been a disclosure failure and apparent bias, substantial injustice could not be inferred. The irregularity was not inherently likely to have affected the result. The Board had two other experienced arbitrators, no actual bias was alleged, and the decision on the time bar was independently supported by the circumstances of the claimants’ conduct.
4. The court also applied section 73. The claimants knew of the general concern they had previously expressed about FCC impartiality and could, when the Board was appointed, have made inquiries about its members’ earlier FCC roles. Their failure to act with reasonable diligence, followed by participation in the arbitration, precluded the later objection.