Independence or Illusion? The Appearance-of-Bias Question in E&P’s ICC Case
Engineers & Planners (E&P) has been battling through an ICC arbitration stemming from its 2024 deal for the Black Volta and Sankofa gold assets. In September 2025, social media buzzed when a commentator claimed E&P had filed a notice to withdraw its claims, an assertion that, whatever its legal nuance, instantly raised public curiosity about the tribunal and its conduct.
Public confidence in arbitration rests not only on the law but on optics. Here, the presiding arbitrator, Madam Funke Adekoya, recently delivered the keynote at a memorial lecture hosted by Bentsi-Enchill, Letsa & Ankomah—the Ghanaian firm that, alongside an international firm, represents the respondents. That appearance occurred while she chairs the very panel hearing E&P’s case.
Even if entirely innocent and permitted under applicable rules, the juxtaposition invites uncomfortable questions: does the event-host relationship risk an appearance of alignment, and could it make a reasonable outside observer wonder about subconscious tilt?
Compounding the unease is how keynote remarks were reported: that Ghanaian counsel ought to build international arbitration credentials by serving as co-counsel with “established international firms.” If reported accurately and in full context, this is a defensible capacity-building view. But within the narrow theatre of this case, where claimant’s counsel is a local firm and respondents have an international firm with Ghanaian co-counsel, the phrasing lands awkwardly. It can be read, however unfairly, as valorising one side’s model over the other’s. In sensitive, high-stakes proceedings, “the look” can matter as much as the letter.
The central question is not whether the chair is actually biased; it is whether a reasonable, fully-informed observer could apprehend a real possibility of bias. International best practice generally expects arbitrators to manage such risks proactively—disclosing potentially relevant relationships, avoiding non-essential public appearances with counsel mid-proceeding, and calibrating public remarks to prevent misinterpretation. That isn’t a verdict on this tribunal; it’s a reminder of the reputational tightrope arbitrators walk.
What should happen now? First, sunlight. If not already done, the chair can consider a targeted disclosure clarifying the circumstances, any prior relationships, and the independence safeguards in place. Second, parties should rely on the ICC’s established challenge and disclosure framework rather than trial-by-tweet. Third, the profession can use this episode to refine practical norms: during active appointments, avoid keynote roles at events hosted by counsel in those matters, or, where attendance is unavoidable, insist on neutral topics and prominent disclaimers.
Arbitration thrives on credibility. When it falters, even by appearance, parties lose faith, and awards invite collateral attacks.
The Ghanaian public, already primed by competing narratives around this transaction, deserves a process that looks and feels beyond reproach. Perhaps the tribunal has done everything by the book. But as every seasoned arbitrator knows, the book isn’t the only audience. Optics are part of justice, too.
