Issue 39 October 2021 - Journal - Page 136
Newcastle United Football
Company Ltd v The Football
Association Premier League Ltd & Others
 EWHC 349 (Comm) - Before His Honour Judge Pelling QC, London Circuit
Commercial Court Judgment delivered 24 February 2021
By a decision letter dated 12 June 2020 the Football
Association Premier League Ltd (‘PLL’) advised Newcastle United Football Company Ltd (‘NUFC’) that if
the club was purchased by the Saudi Arabian Public
Investment Fund, where the latter was state owned,
then in accordance with Section A of the PLL’s Rules,
the Kingdom of Saudi Arabia would become a director of NUFC. NUFC challenged this decision and
commenced arbitration pursuant to the PLL’s Arbitration Code. On 9 October the arbitrators nominated by NUFC and PLL jointly appointed Michael
Beloff QC as chairman.
Was the test for apparent bias satisfied?
On 23 October 2020 PLL notified NUFC that over
the last three years their solicitors had been involved
in 12 arbitrations in which Mr Beloff had been an arbitrator (including three in which he had been nominated by PLL’s solicitors) and that more than two years
previously Mr Beloff had advised PLL on four occasions including in March 2017 in relation to Section F
of the PLL’s Rules which concerned director disqualification. Relying on this disclosure NUFC invited Mr
Beloff to recuse himself but on 25 October he declined
to do so.
As to the other arbitral appointments the judge
thought that a fair minded and informed observer
would not infer a real risk of bias given the small pool
of suitably experienced sports arbitrators.
The judge found that there was no overlap as the
present arbitration was to focus on Section A of the
PPL Rules and the March 2017 advice was unlikely to
have touched upon Section A issues. He acknowledged that whilst it would have been helpful to see the
March 2017 advice, no adverse inference should be
drawn from PLL’s refusal to waive privilege and there
was no evidence to suggest that either PLL’s solicitors
or Mr Beloff would have misrepresented the contents
of the advice.
Regarding the 28 October exchanges the judge
observed that as the emails were concerned with
obtaining privileged information, Mr Beloff could not
be criticised for not copying these emails to NUFC.
Mr Beloff ’s unilateral enquiry to PLL about standing
down had been an error of judgment but could be explained by the pressure of time and was mitigated by
Mr Beloff ’s request that all emails should be disclosed
to NUFC. This did not amount to evidence of a real
risk of bias.
On 28 October Mr Beloff exchanged emails with
PLL’s solicitors that primarily concerned locating the
March 2017 advice but included an enquiry as to
whether PLL thought he should stand down. At Mr
Beloff ’s request, these exchanges were provided to
NUFC on 29 October. On 2 November 2020 PLL indicated that it was not prepared to disclose the March
Finally, looking at things in the round, given Mr
Beloff ’s limited income from historic and future PLL
work, and applying the IBA Guidelines the judge decided that a fair minded and informed observer
would not conclude there was a risk of bias.
On 4 November 2020 NUFC applied to the court to
remove Mr Beloff under section 24 of the Arbitration
Act 1996 on grounds that there were justifiable doubts
as to his impartiality, where Mr Beloff had: (i) previously
been retained by PLL to advise on overlapping issues
under the PLL Rules; (ii) previously been appointed on
three occasions by PLL’s solicitors; (iii) initially failed to
disclose these matters; and, (iv) engaged in private
communications with PLL’s solicitors on 28 October.
This decision has some parallels with construction adjudication where adjudicators with good reputations
may be repeatedly nominated by law firms and will
often also act as consultants or expert witnesses within
a relatively small circle of practitioners.
Each case will turn on its own facts but this judgment
reinforces the need for adjudicators to make full and
early disclosure of previous connections with their
nominating solicitors and clients and for the other
party to study this information closely and promptly
come to a view as to whether or not the nomination is
to be opposed on grounds of apparent bias.
PLL opposed the application contending that: (i) the
March 2017 advice concerning Section F did not relate to any of the issues in the present arbitration; (ii)
Mr Beloff had been appointed chairman by his fellow
arbitrators and not by PLL’s solicitors; (iii) he was not
dependent for his income on appointments by PLL’s
solicitors which were not anyway in excess of IBA
Guidelines; and, (iv) the exchanges on 28 October
were not in breach of IBA Guidelines and would not
create a real possibility of bias.
EXPERT WITNESS JOURNAL
Ted Lowery - May 2021
This article originally appeared in Building magazine and is reproduced
with Building’s kind permission
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