Can the appointment of an arbitrator be challenged? What is the procedure for such challenge? Has there been an increase in number of challenges in your jurisdiction?
International Arbitration (2nd Edition)
The International Commercial Arbitration Law No 19.971 (ICAL) regulates the grounds to challenge an appointed arbitrator in Article 12(2). Under such provision “an arbitrator may be challenged only if there are circumstances that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess the qualifications agreed on by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons known to the party after the appointment has been made”.
The procedure for challenge is regulated in Article 13 of ICAL. Under section 13(1), the parties may freely agree on the arbitrators’ challenge procedure. If such agreement is not reached, the party who wants to challenge an arbitrator shall send to the arbitral tribunal, within 15 days after becoming aware of the arbitral tribunal’s constitution, or of the circumstances stated in Article 12(2) of ICAL, a written statement explaining the grounds for challenge. Unless the challenged arbitrator resigns to her or his appointment, or the other party agrees on the challenge, the arbitral tribunal shall rule on such challenge (Article 13(2) of ICAL).
If the challenge procedures under Articles 13(1) and 13(2) fail to succeed, the challenging party may request to the President of the Court of Appeal of the place of the arbitration, within a 30 day period upon the notification of the challenge rejection, to make a final ruling on the matter. Such decision will be final and while the resolution of the President of the Court of Appeals is pending, the arbitral tribunal, including the challenged arbitrator, may proceed to conduct the arbitration and render an award (Article 13(3) of ICAL).
The recent Chilean Court of Appeals’ jurisprudence does not reveal an increase in the number of challenges against arbitrators under the rules of ICAL.
The appointment of an arbitrator can be challenged if circumstances arise that may cause justified doubts as to its impartiality or independence or if it does not have the qualifications that the parties agreed upon (art. 13 (3) LAV).
The parties are free to agree on the challenge procedure. If there is no agreement, the party that wishes to challenge an arbitrator should state in writing its motives to the arbitral tribunal within a period of 15 days counting from the appointment or from the date that had knowledge of the circumstances that motivate such challenge. If the challenged arbitrator does not renounce to its functions and the party that has appointed him insists in its maintenance, the arbitral tribunal, with the participation of the challenged arbitrator, will decide on the challenge. If however the destitution of the arbitrator still cannot be obtained, the party that challenged the arbitrator may, within a period of 15 days after being notified of the decision that rejects the challenge, request the State court to decide. Such decision will not be subject to appeal (art. 14 LAV).
The challenge of arbitrators is not particularly frequent within the Portuguese jurisdiction and there is no data to support that there has been an increase in the number of challenges.
The procedure regarding the challenge of an arbitrator is not described in the NCPC, but pursuant to case law and the position of some scholars, the procedure shall be the same as the procedure regarding the challenge of a judge. Challenges to arbitrators should be brought before the District Court. It is not permitted for the opposing party to object to the procedure initiated for challenge of the arbitrator.
According to case law, arbitrators may be challenged on the supplementary ground of failure to be impartial and independent.
To our knowledge, there have recently been some cases of challenges in Luxembourg.
The appointment of an arbitrator may be challenged based on three grounds (art. 180 para 1 PILA and art. 367 CPC), namely, (i) if the appointed arbitrator does not have the qualification agreed upon by the parties, (ii) if the rules of arbitration agreed upon by the parties provide a ground for challenging the arbitrator, and (iii) if circumstances giving rise to reasonable doubts as to the arbitrator's independence exist.
A party that wishes to challenge an arbitrator it itself nominated, or in whose appointment it participated, may only do so on grounds that have come to its attention after the appointment. The grounds for challenge must be notified to the arbitral tribunal and the other party without delay.
In case the parties have not agreed on a procedure for challenging an arbitrator (including by means of referring to institutional rules of arbitration), the competent court at the seat of the arbitral tribunal shall take a final decision (art. 180 para 3 PILA). We noted no noticeable increase in the number of challenges.
The appointment of an arbitrator can be challenged. Primarily, the parties may agree on a procedure. Alternatively, arbitral institutions usually have provisions in place concerning the challenge of arbitrators. In the absence of such specific agreement or institutional rules, the ZPO also provides for a challenge-mechanism. Section 1036 (2) ZPO requires circumstances that give rise to justifiable doubts as to the arbitrator’s impartiality or independence or that the arbitrator does not possess the agreed qualifications. Such challenge must be made within two weeks after becoming aware of the constitution of the tribunal or any circumstance that constitutes a ground for challenge (section 1037(2)(1) ZPO).
However, regardless of the parties’ right to agree on the recusal procedure, the parties cannot eliminate the control procedure before the state courts pursuant to section 1037 ZPO. This means that in case a tribunal rejects a party’s challenge, such party may request the competent court to decide on the challenge within one month after the rejection.
The tribunal may continue with the proceedings and issue an award while the challenge to the competent court is pending pursuant to section 1037 (3) ZPO. In that event, the Bundesgerichtshof has held given the challenge is successful only after the award has already been rendered, this constitutes a ground for setting aside of the award. The Bundesgerichtshof reasoned that it must always be assumed that the illegitimate composition of the tribunal directly affected the final decision.
There has been no visible increase in number of challenges to arbitrators.
Challenges to arbitrators are not popular in the ICAC practice.
An arbitrator may be challenged in the following scenarios:
- circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or
- he/she does not possess qualifications agreed to by the parties.
A party may challenge an arbitrator appointed by a party itself, or in whose appointment a party has participated, only for reasons of which it becomes aware after the appointment has been made. Under the ICAC Arbitration Rules the procedure for such challenge is as follows:
- A party sends a written notice of challenge stating the reasons thereof to the ICAC within 15 days after being notified of the composition of the arbitral tribunal, or having become aware of circumstances that can serve as a reason for challenge.
- The ICAC Secretariat gives to the other party an opportunity to comment on the challenge.
- If the challenged arbitrator does not withdraw voluntarily or if the other party does not agree to the challenge, the ICAC Presidium makes the decision on the release of the arbitrator from his appointment.
- If a challenge is not successful, the challenging party may also request, within 30 days after having received a notice of the decision rejecting the challenge, the President of the UCC to decide on the challenge.
- The President of the UCC makes the decision which is subject to no appeal.
The appointment of an arbitrator can be challenged only if circumstances exist that give rise to justifiable doubts as to his/her impartiality or independence. Moreover, an arbitrator can be disqualified if he/she does not possess the qualifications agreed to by the parties.
Moreover, a party may challenge or request the disqualification of an arbitrator it has appointed, or in whose appointment it has participated, only for reasons of which such party becomes aware after the appointment.
Failing an agreement by the parties on a procedure to challenge or disqualify an arbitrator, Panamanian Law includes provisions governing this matter.
A party who intends to challenge or disqualify an arbitrator, within fifteen (15) working days after becoming aware of the constitution of the arbitration tribunal or after becoming aware of any circumstance that is a proper ground for a challenge, shall send a written statement of the reasons for the challenge to the arbitration tribunal.
Unless the challenged arbitrator withdraws from its position or the other party agrees to the challenge, it shall be decided by the arbitration tribunal.
In the case of a sole arbitrator or in the case the arbitration tribunal is unable to decide on the challenge within ten (10) working days after receiving the request, the challenge shall be decided, at the request of any party, by a local or foreign arbitration institution pursuant to its rules within fifteen (15) working days after receiving the relevant request.
While the challenge is pending, the arbitration tribunal, including the challenged arbitrator, may continue the arbitral proceedings and even render an award.
The decision on the challenge is not subject to appeal.
There is an increase on the number of challenges, especially under the new Arbitration Rules of CeCAP, which entered into effect on August 1, 2015. Under the new rules, all the challenges are decided by the Secretary General or the arbitration center (even for a three-member tribunal). Under the previous Arbitration Rules of CeCAP, in the cases of a three-member tribunal, the challenges against an arbitrator where decided by the rest of the members of the arbitral tribunal.
The UAE CPC (Article 207) and the DIAC Rules (Article 13) both provide for the challenging of an arbitrator’s position.
The Court should, pursuant to Article 207 of the UAE CPC, examine any request to reject the arbitrator that must be made within 5 days from notifying the opposing party of the appointment, or from the date the ‘reason for rejection occurred or came to the knowledge’ of the challenging party after the arbitrator’s appointment.
UAE Off-Shore Jurisdictions
The appointment of an arbitrator can be challenged pursuant to DIFC Arbitration Law (Article 18) on the grounds he / she is not independent, impartial or does not possess the qualifications agreed upon by the parties.
A party challenging the arbitrator’s position, must write to the LCIA Court, Arbitral Tribunal and all other parties within 14 days of the formation of the Arbitral Tribunal or becoming aware of the grounds for removal of the arbitrator. Should all other parties agree with the challenge brought, the arbitrator’s appointment shall be revoked by the LCIA Court.
If the arbitrator does not resign or the parties do not agree to the removal of the arbitrator, the LCIA Court shall issue its decision upon the challenge (Article 10 of the DIFC-LCIA Arbitration Rules).
The appointment of an arbitrator can be challenged based on lack of impartiality, and in rare circumstances, for unduly delaying the proceedings. Unless the parties have agreed otherwise, e.g. to apply institutional rules, requests for removal of an arbitrator will, in the first place, be tried by the tribunal. If the tribunal denies the request, a party may apply to a district court for removal of the arbitrator. In comparison to the overall numbers of arbitral proceedings in Sweden, the numbers of challenges of the appointment of arbitrators are low. No increase can be noticed.
The SAA is very flexible when governing the process to challenge or remove arbitrators, with article 18 of the said Act leaving the setting of such process to the parties.
Failing to agree on a procedure for challenging arbitrators, a party who intends to challenge an arbitrator will state the grounds for the challenge within fifteen days after becoming aware of the acceptance or of any circumstance that may give rise to justified doubts about the arbitrator’s impartiality or independence.
Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitrators will decide on the challenge.
If the challenge under any procedure agreed upon by the parties or laid down in the preceding item is not successful, the challenging party may submit the challenge as grounds for objecting to the award.
Arbitrators may be subjected to a challenge procedure, however, this possibility has not been often exploited by the parties nor there is a trend of an increase in number of challenges in Serbia.
A party may challenge the arbitrator within 15 days from the day that it became aware of the appointment of the arbitrator, or within 15 days from the time it became aware of the facts giving rise to challenge. The party which took part in the appointment of a particular arbitrator can only challenge that arbitrator if the facts giving rise to challenge occurred after the appointment, or if the party became aware of those facts after the appointment.
If the parties did not agree differently, the court decides on the challenge of the arbitrator. If the parties have initiated arbitration in accordance with the rules of procedure of a particular arbitral institution, the challenge of arbitrators shall be resolved in accordance with the rules of that institution.
The procedure of challenge of arbitrator does not prevent the arbitration from continuing arbitration proceedings and rendering an award.
The appointment of an arbitrator can be challenged if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
a. The parties are free to agree as to the procedure to challenge the arbitrators. If no agreement has been made as to procedure, a party who intends to challenge an arbitrator shall, within fifteen (15) days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties, send a written statement of the reasons for the challenge to the arbitral tribunal. If the challenge is unsuccessful, the challenging party may request, within thirty (30) days after having received notice of the decision rejecting the challenge, the appointing authority to decide the challege. It is only when such Appointing Authority fails or refuses to act on the challenge within such period as may be allowed under the applicable rule or in the absence thereof, within thirty (30) days from receipt of the request, that the aggrieved party may renew the challenge in court.
There does not appear to be an increase in the number of challenges to arbitrators.
The appointment of the arbitrator may be challenged if there is any justifiable doubts to the impartiality, independency or to the neutrality of the arbitrator as per Fifth & Seventh Schedule of the Arbitration & Conciliation Act, 1996. As per Section 13 of the Arbitration & Conciliation Act, 1996, the parties are free to agree on the procedure for challenging the arbitrator. However, if there has no agreement, then any of the parties within 15 days after becoming aware of the justifiable doubts may challenge send a written statement of the reasons to the challenge of the arbitral tribunal. Unless, the arbitrator withdraws or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. If the challenge is not successful, then the arbitrator may pass an award and the same can be challenged under Section 34 of the Arbitration & Conciliation Act, 1996. With the introduction of the fifth and seventh schedule in the Arbitration & Conciliation Act, there has been substantial increase in the number of challenges in India. Furthermore, in view of section 14 and 15 of the Arbitration and Conciliation Act, 1996, the Hon’ble Court has power to terminate the mandate of an Arbitrator if such Arbitrator become de-jure or de-facto unable to perform his duty and substitute the arbitrator. Also as per section 29A(6) of the Arbitration and Conciliation Act, the Hon’ble Court can substitute an Arbitrator at the time of extending the time to complete the arbitration proceedings maximum by six months.
The grounds for challenging arbitrators are the same as for judges stipulated in the Organic General Code of Procedures. The challenge is resolved:
a) In case of a tribunal formed by more than one member, by the persons not included in the challenge claim. If the latter fail to reach an agreement, the challenge will be solved by the director of the center.
b) In the case all arbitrators are challenged, the director of the center will resolve the challenge.
c) In the case of a tribunal formed by a single person, the director of the center will resolve the challenge. The arbitrator’s replacement will be carried out in accordance with Article 16.
d) In the case of independent arbitration, the challenge is resolved by the members of the court who were not challenged.
e) In the case of a court formed by a single person or if all arbitrators are challenged, the challenge will be solved by the director of the arbitration center nearest to the plaintiff´s domicile.
The arbitrators appointed by agreement of the parties may only be challenged by reasons unknown at the time of their appointment or that appeared after such appointment. There is not a significant increase in number of challenges.
The Arbitration Law has a specific procedure for the recusal of arbitrators. According to Article 18 of the Arbitration Law an arbitrator cannot be recused unless there is an issue regarding his or her neutrality or impartiality. According to the Arbitration Law Article 19, a party may make an application for recusal of an arbitrator to the arbitral tribunal. The arbitrator then has 15 days to step down as arbitrator. If the arbitrator does not step down within 15 days of the application then the recusal application must be referred to the competent court for review. The competent court then decides on the application. The above procedure of referral is mandatory public policy. The Cairo Regional Center has objected to this Rule, and it has been subjected to challenges before the courts, where it was submitted that where parties have agreed to a set of rules including recusal procedures, recusal should be subject to these rules and not a court decision. The matter is still not clear. Absent an amendment to the Law, it is likely that the courts will continue to apply the mandatory statutory provision that provides that recusal is to be decided by the courts.
The appointment of an arbitrator may only be challenged in the event that there is firm basis for justifiable doubt as to the independence or impartiality of the arbitrator, or if the appointed arbitrator does not possess the necessary or agreed qualifications. The challenge of the appointment of an arbitrator may only take place if the challenging party became aware of the basis for challenge after the appointment was made.
An arbitrator may be challenged: i) in case of justifiable doubts regarding his independence or impartiality, ii) if the arbitrator does not possess qualifications agreed to by the parties, and iii) if arbitrator fails to fulfill his obligation conduct the arbitration in expeditious manner.
The parties are free to agree on the procedure for challenge of arbitrator. In the absence of such agreement, a party indenting to challenge has to send substantiated written statement explaining reasons for the challenge within 15 days from becoming aware of such reasons or becoming aware of the appointment. Unless the challenged arbitrator resigns of or the other party agrees to the challenge, the arbitral tribunal (including the challenged arbitrator) shall decide on the challenge.
If a challenge is unsuccessful, a party may request the appointing authority to decide on the challenge. Such procedure does not preclude continuation of arbitral proceedings.
In practice, there are not many procedures for the challenge of arbitrators.
A party may challenge the appointment of an Arbitrator and seek his removal at the time the Tribunal is constituted or later, if new facts come to light regarding his impartiality or independence. In accordance with the provisions of section 12 of the ICA Law, in international arbitrations, an Arbitrator may be challenged, where circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or where the Arbitrator does not possess the qualifications agreed by the parties. A party may challenge an Arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
Pursuant to section 13 of the ICA Law, the parties are free to agree on the procedure for challenging an Arbitrator, and in the event where no such procedure is agreed, the section provides that a party shall within fifteen days after becoming aware of any circumstances that give rise to justifiable doubts as to his impartiality or independence, or if he fails to possess the qualifications agreed by the parties, make a proposal for challenging the Arbitrator to the arbitral tribunal. The arbitral tribunal shall decide on the challenge unless the challenged Arbitrator withdraws from his position or the other party agrees to the challenge. In the event that the challenging procedure agreed by the parties or the abovementioned default procedure is not successful, the challenging party may request that the national court decide on the challenge. This decision will be final.
Furthermore on the basis of section 14 of the ICA Law, the reference of an arbitrator is terminated either by his own request or with an agreement of the parties or with the leave of the Court, where it has been determined that the arbitrator became de jure or de facto unable to perform his functions as an arbitrator or in the event that he fails to act without undue delay.
In relation to domestic arbitrations, section 13 of Cap.4 provides that a Court may, upon an application made by any party, remove an Arbitrator or an umpire who fails to act with the appropriate promptitude in the entering into and the continuance of the reference and the issuance of his decision. Additionally, section 20 allows a Court to remove an Arbitrator or an umpire where he has misconducted himself or the proceedings.
We are not aware of any statistical data portraying an increase in the number of challenges of the appointment of arbitrators in Cyprus.
If a party becomes aware of a problematic situation, that party must challenge the arbitrator during the arbitration proceedings by following the procedure and time limits set out in the applicable arbitration or procedural rules (rather than waiting until the setting-aside stage). If the party waits until the moment of setting-aside to challenge the arbitrator, the French courts will consider that the party waived its right to challenge the award on the basis of a lack of independence and impartiality of the arbitrator (see Court of Cassation, First Civil Chamber, 25 June 2014, No. 11-26.529, Tecnimont).
An arbitrator can be challenged on any of the following grounds, which apply to both domestic and international arbitration:
- Any circumstance that can affect his or her independence or impartiality (Article 1456, CCP).
- Legal incapacity, refusal to act or resignation (Article 1457, CCP).
- Unanimous consent of the parties (Article 1458, CCP).
If the parties cannot agree on the removal of an arbitrator, the issue is resolved by the person in charge of administering the arbitration or, where there is no such person, by the juge d’appui (Articles 1456 and 1458, CCP). The time limit to file an application before the juge d’appui is one month following the disclosure or the discovery of the fact at issue.
Statistics from the Secretariat of the ICC Court suggest that the number of challenges registered with the Court has increased in recent years, but this is likely due to the substantial increase in the Court’s caseload rather than a stronger propensity for challenging arbitrators.
Under Italian law, a party may challenge an arbitrator if any of the circumstances enumerated in Article 815 CCP is met. For example in the arbitrator: (i) lacks the qualifications indicated by the parties, (ii) has a direct or indirect interest in the matter at dispute, (iii) has a qualified relationships with either party, or (iv) has previously provided professional advice, legal aid or defense in favor of either party.
A party may challenge the arbitrator that itself has appointed only for reasons that such party becomes aware of after the appointment has been made.
If the parties fail to replace the arbitrator by mutual agreement, the President of the Court of First Instance at the seat of arbitration will proceed to make the appointment.
We are not aware of any statistic on the number of challenges brought before national courts.
The appointment of an arbitrator can be challenged if circumstances exist that raise justifiable doubts as to his/her impartiality or independence; or that he/she does not possess the qualifications agreed by the parties. See section 8 of the ACA. The parties are at liberty to determine the procedure to be followed in challenging the appointment of an arbitrator. Under the ACA, where no such procedure was agreed, the party intending to challenge the arbitrator must forward a written statement of the reasons for the challenge to the arbitral tribunal within 15 days of becoming aware of the constitution of the arbitral tribunal or the circumstances for the challenge.
Unless the arbitrator whose appointment has been challenged withdraws or the other party agrees to the challenge, the arbitral tribunal will decide on the challenge. See section 9 of the ACA. Under the Lagos Law, the arbitral tribunal or the appointing authority (if there is one) will determine the challenge. There has been a rise in number of challenges to the appointments of arbitrators of late but such challenges are largely unreported. Nigeria does not have comprehensive reporting of appellate cases, and cases in the trial court are rarely reported at all. There is increasing awareness of the importance of arbitration and the need for expediency in the process.
Generally, parties can challenge arbitrators if there are (justified) doubts about their impartiality or independence. To this end, arbitrators are to disclose any circumstances that are likely to give rise to such doubts and the parties may challenge an arbitrator within four weeks after becoming aware of relevant circumstances.
In a first step, the arbitral tribunal decides on the challenge (unless the arbitrator anyway resigns).
If the motion was unsuccessful, in a second step, the challenging party has four weeks to approach the Austrian Supreme Court which ultimately decides.
As far as can be seen, there is no increase in the number of challenges in Austria.
The FAA does not provide a procedure for challenging appointment of an arbitrator. The institutional rules of most arbitration institutions, including for example the AAA/ICDR, JAMS, and CPR, provide mechanisms for arbitrator challenges, typically based on alleged conflicts of interest. Some state arbitration statutes establish additional procedures for such challenges. For example, the California Arbitration Act requires arbitrators to make disclosures, and imposes a 15-day deadline for arbitrator challenges following those disclosures.
Following an arbitration, the FAA permits a party to challenge enforcement of an arbitration award on the ground that there was ‘evident partiality or corruption in the arbitrators.’ 9 U.S.C. §10.2. The U.S. circuit courts are split on how to interpret this ‘evident partiality’ standard, with some circuits finding evident partiality where undisclosed facts create a ‘reasonable impression’ of bias, and others finding ‘the burden on a claimant for vacation of an arbitration award due to ‘evident partiality’ is heavy, and the claimant must establish specific facts that indicate improper motives on the part of an arbitrator.’ Republic of Argentina v. AWG Grp. Ltd., 211 F. Supp. 3d 335, 351 (D.D.C. 2016) (quoting Al–Harbi v. Citibank, 85 F.3d 680, 683 (D.C. Cir. 1996)).
In international commercial arbitral proceedings having their seat in Greece, articles 12, 13 and 14 L. 2735/1999 provide for the challenge of an arbitrator incorporating verbatim the respective provisions of the Model Law. The Court competent to adjudicate the challenge is the one mentioned under Question 14 above. Although the parties may agree on a specific challenge procedure, they may not exclude the exercise of judicial control over the decision of the tribunal dismissing a challenge request which is provided under article 13 para. 3.
In domestic arbitration the parties may jointly revoke the appointment of an arbitrator (article 883 para. 1 of the GrCCP). In case such an appointment has taken place by virtue of a Court decision, a request for its revocations must be filed and be accepted by the same Court. Challenges against arbitrators are adjudicated by the Courts. Pursuant to article 883 para. 2 in fin GrCCP, pending such challenge the arbitral tribunal postpones the proceedings. The arbitrator challenged shall also temporarily refrain from exercising his duties. However, according to the prevailing view in legal literature, said prohibitions are in fact leges imperfectae in the sense that the award may be set aside only in case it was made by an arbitrator who had already been successfully challenged.
Yes. Pursuant to Section 11 of the Arbitration Law, the parties may appeal to the court requesting to remove an arbitrator from his office in one of the following cases: (a) it was discovered that the arbitrator was unworthy of the parties' trust; (b) the arbitrator's conduct in the course of the arbitration causes a delay of justice; (c) the arbitrator is unable to perform his function.
An application for the removal of an arbitrator from his office may be filed as long as the arbitral award has not been given. The application may be filed by either of or both parties to the arbitration.
Pursuant to s.24 of the 1996 Act, any party may apply to the court (under Part 62 of the Civil Procedure Rules) to remove an arbitrator where (a) circumstances exist that give rise to justifiable doubts as to his impartiality, (b) the arbitrator lacks the requisite qualifications or capacity or (c) the arbitrator refuses or fails to properly conduct proceedings or make an award.
Arbitrator challenges are not common, but statistics from arbitral institutions indicate a recent increase in arbitrator challenges, particularly in investment treaty disputes. This trend is also reflected in a number of recent decisions by the English courts as regards arbitrator challenges, including Cofely Ltd v Bingham and another  EWHC 240 (Comm).