Clifford Chance fails to win judge bias claim

Clifford Chance has failed in its bid to have an arbitrator removed from a high-profile telecoms case for alleged bias.

Canadian lawyer Yves Fortier had ruled against telecoms giant and Clifford Chance client AT&T in a contractual dispute with the Saudi Cable Company (SCC).

SCC, represented by Freshfields, was awarded damages and costs earlier this year after a four-year dispute.

But before the amount AT&T should pay was decided, it emerged that Fortier was a non-executive director and shareholder of its Canadian rival Nortel. Clifford Chance, on behalf of AT&T, issued an application in the Commercial Court to seek his removal and set aside the tribunal's awards.

But the application was turned down. Ruling on the judgment, Justice Longmore said he was “confident that Mr Fortier decided the proceedings on their merits without any danger of being infected by bias”.

Freshfields litigation partner Paul Leonard says: “This decision confirms the common sense approach of the English court to questions of bias. AT&T did not bring to the court one scrap of evidence that Fortier was actually or unconsciously biased.”

It is the sixth case accusing judges of bias since the House of Lords ruling on General Pinochet's extradition was quashed over Lord Hoffmann's involvement with Amnesty International. But none have been successful and all are seeking leave to appeal.

Freshfields' senior assistant Tim Boyce, who worked on the case, calls the use of bias “a worrying trend”, but adds: “English law seems to be trying to put a brake on this type of issue by drawing lines in the sand in sensible places.”

Clifford Chance partner Perry Simson, who acted for AT&T, says: “We are considering where next to go from here.” He declines to comment further except to confirm appeal “is one of the options”.