Originally from Investment Treaty Arbitration and International Law - Volume 18

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I. PRELIMINARY REMARKS

On 10 January 2023, the Paris Court of Appeal annulled a partial arbitral award rendered by a three-member tribunal because of doubts as to the impartiality of the presiding arbitrator arising from a eulogy that he published, amidst arbitral proceedings, in the memory of the lead counsel for one of the parties. The eulogy stated not only that the two were close personal friends, but also that the two would meet on a regular basis, and the presiding arbitrator hinted that he consulted the counsel before making any important decision. The same eulogy revealed that the two were to meet at another hearing, scheduled shortly before the counsel’s death and that the arbitrator was looking forward to the counsel’s “impressive knife-edge pleadings, where his precision and overreaching vision seduced me much more than any histrionic outbursts.”   The Court of Appeal, held that combined, these elements planted the seed of “a reasonable doubt in the parties’ minds as to [the arbitrator’s] independence and impartiality, meaning a doubt that could arise in a person placed in the same situation and having access to the same reasonably accessible information (…)”.  Together, these circumstances justified the annulment of the partial award. The Court of Cassation affirmed the findings of the Court of Appeal on 19 June 2024. 

The circumstances amounting to conflicts of interests are not defined by the French Code of Civil Procedure. Article 1456(2) of the French Code of Civil Procedure requires “the arbitrator, before accepting his mission, to reveal any circumstance likely to affect his independence or impartiality.”