TODD TARANAKI LIMITED AND ANOR V ENERGY INFRASTRUCTURE LIMITED AND ANOR HC WN CIV-2007-485-2684

TODD TARANAKI LIMITED AND ANOR V ENERGY INFRASTRUCTURE LIMITED AND ANOR HC WN CIV-2007-485-2684

After a robust factual inquiry the court found the critical remark 'right' referred to sides of the room not the correctness of argument, and the 'capitulated' remark was innocuous banter quickly corrected; those established circumstances would not lead a fair-minded informed observer to apprehend a real possibility of bias, so no justifiable doubt arose under Article 12(2) and the challenge was dismissed.

Citation
openlaw-3114174d_0790_4bae_b10d_efb7619af47e.pdf
Parties
First Applicant: Todd Taranaki Limited; Second Applicant: Todd Pohokura Limited; First Respondent: Energy Infrastructure Limited; Second Respondent: Shell Exploration NZ Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 December 2007
Procedural Posture
Application Under Arbitration Act 1996 to Challenge Arbitrator / Originating Application for Removal of Arbitrator; Interlocutory Hearing Before Substantive Arbitration Ongoing
Outcome
Application dismissed; challenge to arbitrator not upheld
Legal Topics
Challenge to Arbitrator, Impartiality, Recusal, Arbitration Act First Schedule Articles 9(3), 12, 13
Arbitration Judicial Recusal/apparent Bias Civil Procedure Challenge to Arbitrator Impartiality Recusal Arbitration Act First Schedule Articles 9(3),12,13

Case Brief

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Parties

Todd Taranaki Limited

First Applicant

Todd Pohokura Limited

Second Applicant

Energy Infrastructure Limited

First Respondent

Shell Exploration NZ Limited

Second Respondent

Procedural Posture

Application Under Arbitration Act 1996 to Challenge Arbitrator / Originating Application for Removal of Arbitrator; Interlocutory Hearing Before Substantive Arbitration Ongoing

Legal Issues

  1. 1 Whether comments by the arbitrator gave rise to justifiable doubts as to impartiality under Article 12(2) First Schedule to the Arbitration Act 1996
  2. 2 Whether the arbitrator's refusal to adjourn contributed to reasonable apprehension of bias
  3. 3 Whether the factual accounts supported recusal under the two-stage Muir test

Ratio Decidendi

After a robust factual inquiry the court found the critical remark 'right' referred to sides of the room not the correctness of argument, and the 'capitulated' remark was innocuous banter quickly corrected; those established circumstances would not lead a fair-minded informed observer to apprehend a real possibility of bias, so no justifiable doubt arose under Article 12(2) and the challenge was dismissed.

Court Disposition

Application dismissed; challenge to arbitrator not upheld

Orders

  • Application to remove arbitrator dismissed
  • Arbitral proceedings may continue before the arbitrator