Unconscious Bias in Arbitration: Case Law and the Path to Fairness

This article examines the impact of unconscious bias in arbitration and, in particular, in arbitrators’ challenges. Through the analysis of recent case law – including the Swiss Sun Yang Case (2020), the ICC Court Monologue Challenge (2023), the English Expert Case (2024) and the French Obituary Case (2023) – it highlights how unconscious bias can shape decision-making, procedural conduct and perceptions of fairness in arbitration. Arbitrators often deny partiality, yet their conduct – such as dismissiveness, unequal favour, or culturally charged remarks – can create reasonable doubts about lack of impartiality and independence, regardless of intent or awareness. While not all instances of unconscious bias warrant disqualification as an arbitrator, this article argues that unconscious bias can be properly addressed through current standards for independence and impartiality in key instruments such as the IBA Guidelines on conflict of interests in international arbitration. Finally, it advocates for bias-mitigation training and diversity to preserve arbitration’s legitimacy.