Home » France Court of Cassation annuls arbitration award over impartiality concerns

France Court of Cassation annuls arbitration award over impartiality concerns

by Derek Andrews
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The French Courtroom of Cassation annulled an award granted in an arbitration on the International Chamber of Commerce (ICC) in 2020 on Friday. The case earlier than the French courtroom arose when the presiding arbitrator of a three-person ICC tribunal, Thomas Clay, wrote a eulogy for lawyer Emmanuel Gaillard, counsel of a celebration earlier than the physique.

Arbitration is the method whereby two events with a business relationship refer a dispute to a tribunal which makes a binding choice on the dispute. The independence and impartiality of arbitrators are required as a normal rule, and it’s expressly supplied in numerous legal guidelines that govern arbitration. On this case, the arbitration occurred beneath French legislation.

The events concerned had been “the corporate DIT” and “the PAD firm.” The previous was tasked to “handle, function and develop the container dealing with exercise” of the latter’s port starting in 2004. A dispute between the 2 events arose in 2019, after which the corporate DIT initiated arbitration proceedings earlier than the ICC. The arbitration resulted in an award in favour of the corporate DIT in November 2020. All through your complete course of, Clay didn’t disclose the existence of any relationship between himself and Gaillard, a lawyer for the corporate DIT.

Following the publication of the eulogy in April 2021, the corporate PAD challenged the award handed by the ICC a yr earlier on account of the private relationship between Clay and Gaillard. The eulogy reveals that Clay and Gaillard had recognized one another since 2000, had been shut associates and travelled overseas collectively. Clay even states that “[he] admired and liked [Gaillard].” When the ICC dismissed the problem, the corporate filed an attraction to the Paris Courtroom of Enchantment, which annulled the award on the grounds that the eulogy did certainly reveal a private relationship which the arbitrator was sure to reveal, however didn’t.

Article 11 of the 2021 ICC Arbitration Guidelines explicitly requires that “each arbitrator should be and stay neutral and impartial of the events concerned within the arbitration,” and additional mandates that each “potential arbitrator shall disclose in writing to the Secretariat any details or circumstances which may be of such a nature as to name into query the arbitrator’s independence within the eyes of the events.”

Additional, Article 1456 of the French Civil Process Code requires that an arbitrator “disclose any circumstance that will have an effect on his or her independence or impartiality.”

The choice was appealed by the DIT firm and went earlier than the French Court of Cassation, which upheld the choice of the Courtroom of Enchantment.

Source / Picture: jurist.org

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