Port Autonome de Douala v. Douala Int'l Terminal S.A

10 January 2023

Paris Court of Appeal

RG no. 20/18330

Division 5 – Chamber 16

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

PARIS COURT OF APPEAL

International Commercial Chamber

DIVISION 5 - CHAMBER 16

JUDGMENT OF 10 JANUARY 2023

(no. 4 /2023, 14 pages)

Court file registration number: RG no. 20/18330 - Portalis no. 35L7-V-B7E-CCZ4M

Decision referred to the Court: ICC partial arbitral award issued 10 November 2020 (no. 24211/DDA)

APPLICANT:

PORT AUTONOME DE [Municipality 2] (PAD)

a limited company with public capital (société anonyme à capital public) having the State as its sole shareholder registered in the DOUALA Commercial Register under no. RC/DLA/2003/B/030153,

which has its registered office at: [Address 1] (CAMEROON)

acting through its legal representatives,

Applicants’ lawyer for procedural purposes (“avocat postulant”): Ms Frédérique ETEVENARD, a lawyer admitted to the PARIS bar, box: K0065

Lawyers making submissions for the Applicants: Mr Emmanuel TANG, a lawyer admitted to the CAMEROON bar, and Mr Gill DINGOMÉ of SELARL DINGOME NGANDO & ASSOCIE, a lawyer admitted to the PARIS bar, box: K0027, Mr Charles Christian ONDOUA, a lawyer admitted to the CAMEROON bar, Mr Amad Tijan KOUOTOU, a lawyer admitted to the CAMEROUN bar, and Ms Tarcile Gaëlle TANG MITJAKE, a lawyer admitted to the CAMEROON bar.

RESPONDENTS:

[Municipality 2] INTERNATIONAL TERMINAL

a company incorporated under the laws of CAMEROON

which has its registered office at: [Address 3] (CAMEROON)

acting through its legal representatives,

Respondents’ lawyer for procedural purposes (“avocat postulant”): Luca DE MARIA of SELARL PELLERIN – DE MARIA – GUERRE, a lawyer admitted to the PARIS bar, box: L0018

Lawyers making submissions for the Respondents: Mr Benjamin SIINO and Ms Teresa VEGA of AARPI GAILLARD BANIFATEMI SHELBAYA SIINO, lawyers admitted to the PARIS bar, box: J006

COMPOSITION OF THE COURT:

The case was heard on 4 October 2022, in a hearing open to the public, before a Court composed of:

Mr Daniel BARLOW, Presiding Judge

Ms Fabienne SCHALLER, Judge

Ms Laure ALDEBERT, Judge

who have held deliberations regarding it.

A report was presented at the hearing by Ms Fabienne SCHALLER in accordance with Article 804 of the Civil Procedure Code.

Clerk during the hearing: Ms Najma EL FARISSI

JUDGMENT:

– issued following a process in which both sides were heard

– made available at the Court registry, with prior notice to the parties in accordance with the terms of the second paragraph of Article 450 of the French Civil Procedure Code

– signed by Daniel BARLOW, Chamber Presiding Judge, and by Najma EL FARISSI, Clerk, to whom the signatory judge provided the original of the decision

Summary of the dispute

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I/ FACTS AND PROCEDURAL STEPS

1. The Court is seised of an application to set aside a partial award issued on 10 November 2020 in an arbitration administered by the ICC (case no. 24211/DDA) between [Municipality 2] International Terminal (“DIT”), a company incorporated under the laws of Cameroon that is responsible for managing, operating and developing container handling operations at the port of [Municipality 2], and Le Port Autonome de [Municipality 2] (“PAD”), a limited company with public capital (“société anonyme à capital public”), whose sole shareholder is the Republic of Cameroon, which manages, promotes and markets the port of [Municipality 2].

2. On 28 June 2004, the parties signed a 15-year agreement for a concession to manage and operate the modernised container terminal at the Port of [Municipality 2], following a consultation process and a call for expressions of interest.

3. The consortium comprising APM Terminals and the Bolloré group, which had initially been announced the provisional winner of the concession on 6 November 2003, was replaced by DIT, a company set up in 2004, which took over all the rights and obligations of the concession holder.

4. The concession agreement provided that “two years before the end of the concession's term, the grantor of the concession will select a new concession holder through an international open call for tenders”, in which “the concession holder will be free to participate”.

5. During the performance of the agreement, a dispute arose between the parties concerning the distribution of income from storing containers and cargo on the concession area. PAD accused DIT of various breaches relating to the company’s payment of storage fines, which PAD estimated at 24 billion CFA francs.

6. At the beginning of 2018, PAD launched an international call for tenders process for the concession renewal. DIT did not participate in the pre-selection phase, because it considered that the pre-selection criteria set by PAD were such as to exclude it from the concession renewal process.

7. On 7 January 2019, PAD served formal notice on DIT to pay it 24 billion CFA francs in respect of DIT’s breaches of the concession agreement.

8. On 8 January 2019, PAD published the list of candidates that had been pre-qualified to participate in the second phase of the call for tenders, which did not include DIT.

9. On 16 January 2019, DIT brought an arbitration proceeding before the International Court of Arbitration of the International Chamber of Commerce in Paris (the “ICC”) pursuant to section 31 of the concession agreement. It appointed Mr [N] [S] as co-arbitrator. PAD appointed Mr [X] [W] [J] as co-arbitrator. The co-arbitrators appointed Mr [O] [L] as president of the arbitral tribunal.

10. On 18 January 2019, DIT wrote to PAD to confirm that it wished to submit a tender in response to the call for consultations process, in accordance with section 25 of the concession agreement. Through a letter dated 11 March 2019, PAD rejected DIT's submission on the basis that submissions could not be accepted after 19 February 2018.

11. On 23 April 2019, DIT added an additional claim to the arbitration, requesting that the arbitral tribunal declare that PAD breached its contractual obligations under section 25 of the concession agreement by issuing a restricted call for tenders for the concession renewal and by not allowing DIT to participate freely in that process.

12. Further disputes arose between the parties regarding the termination of the concession agreement on 31 December 2019, especially in light of PAD having requisitioned all the assets owned and/or operated by DIT under the concession agreement.

13. On 8 January 2020, DIT submitted these additional issues to the arbitral tribunal. After finding that it had jurisdiction to decide these issues, which had been found to be admissible, the arbitral tribunal decided that they would be subject to a separate procedural timetable, to avoid disrupting the proceeding on the issues already before it.

14. In a partial award issued on 10 November 2020, the arbitral tribunal:

- held that it had jurisdiction and that DIT’s claims were admissible. It ruled that DIT did not owe the PAD any amount for storage fees, and that the formal notice to pay 24 billion CFA francs was of no effect against DIT;

- found, regarding the concession renewal, that PAD had breached its obligations under section 25 of the concession agreement and ordered PAD to comply with its section 25 obligations by issuing an open international call for tenders, without a pre-selection phase;

- ordered PAD to compensate DIT for the losses caused by the breach and determined that the quantum of damages would be calculated in proportion to the period during which DIT had been deprived of the opportunity to participate in an open international call for tenders, starting from a loss of 58.6 million euros for the entire 15-year concession period, based on the effective period between the end of the concession agreement and the first day of the new concession awarded following the new open international call for tenders. It decided that if DIT were to be awarded the new concession, the period for which it received compensation would be deducted from the term of the new concession; and

- rejected DIT's claim for compensation for non-pecuniary loss and dismissed PAD's counterclaims relating to DIT's alleged breaches of the concession agreement.

15. On 14 December 2020, PAD filed an application to set aside the partial award with the Paris Court of Appeal, which was registered under number RG 20/18330.

16. At the same time, on 20 April 2021, in the arbitration proceeding that was continuing on the other points in dispute before the same arbitral tribunal, PAD submitted a challenge to the president of the arbitral tribunal to the Secretariat of the ICC Court of International Arbitration. On 12 May 2021, the Secretariat of the ICC International Court of Arbitration informed the parties that the Court had rejected the challenge.

17. The same arbitral tribunal rendered a final award on 9 November 2021, against which a set-aside application has been filed with the Paris Court of Appeal, which is currently pending under the number RG 22/01748. An addendum was added to the final award and an application regarding the addendum was filed under number RG 22/13862.

II/ PARTIES’ SUBMISSIONS

18- In its final summary submissions (no. 3), provided electronically on 22 February 2022, Port Autonome de [Municipality 2] asks that, on the basis of Article 1520(2), (3) and (5) of the French Civil Procedure Code, Articles 11, 13 and 14 of the 2017 ICC Rules of Arbitration and the ICC recommendations contained in the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration applicable as of 1 January 2019, the court:

- Declare that Port Autonome de [Municipality 2]’s set-aside application is admissible and meritorious;

In granting the application,

- Dismiss [Municipality 2] International Terminal's admissibility objection regarding the ground for set-aside based on Article 1520(2) of the French Civil Procedure Code because Port Autonome de [Municipality 2] never waived its right to rely on that ground, since PAD did not know that facts that were not public knowledge that were invoked in support of the argument that the composition of the Arbitral Tribunal was improper before the 10 November 2020 partial award, since these facts were only brought to PAD's attention on 15 April 2021 and 17 November 2021;

- Order that the 10 November 2020 arbitral award be set aside based on the first ground raised, that the Arbitral Tribunal was improperly constituted, because of:

 •  PAD having discovered facts that were not publicly known and that were deliberately concealed by Mr [O] [L], in his close relationship with Mr Emmanuel GAILLARD, counsel for DIT, which caused PAD's executives to have reasonable doubts as to Mr [O] [L]'s independence and impartiality. (regular and consistent contact over 21 years, from January 2000 to 1 April 2021; 

close friendship for 21 years, from January 2000 to 1 April 2021; ongoing consultations before all major decisions were made over 21 years, from January 2000 to 1 April 2021; deep admiration for 21 years, from January 2000 to April 1, 2021; and personal and professional ties that were not public knowledge and were discovered after 17 November 2021;

 • a party may not agree to have their case decided by an arbitrator who has publicly admitted that he “consulted Mr Emmanuel GAILLARD before making any important decision”, in circumstances in which Mr GAILLARD is counsel for the adverse party;

 • the detailed admissions and facts revealed in a eulogy may be invoked against the eulogist, since a eulogy cannot be used as an affirmative defence to criminal, civil or professional liability;

 • the award must be set aside even if it was made unanimously and the impartiality of the other arbitrators is not called into question;

 • the defect resulting from the collusion between the president of the Arbitral Tribunal (Mr [O] [L]) and Mr Emmanuel GAILLARD (counsel for DIT) makes the Arbitral Tribunal's constitution improper;

- Order that the 10 November 2020 arbitral award be set aside on the second ground, that the Arbitral Tribunal's award goes beyond the scope of the mandate conferred upon it, because:

o DIT did not request from the Arbitral Tribunal, either in its claimant's memorial or in its subsequent memorials, or in any of its written submissions, nor did it specify that “the quantum of damages would be calculated in proportion to the period during which [Municipality 2] International Terminal had been deprived of the opportunity to participate in an open international call for tendersstarting from a loss of 58.6 million euros for the entire 15-year concession period, based on the effective period between the end of the concession agreement and the first day of the new concession awarded following the new open international call for tenders; If DIT were to be awarded the new concession, the period for which it received compensation would be deducted from the term of the new concession”;

o In making this decision, the Arbitral Tribunal ruled ultra petita and therefore did exceeded the scope of the mandate conferred upon it;

- Order that the 10 November 2020 arbitral award be set aside on the third ground, based on breach of international public policy, because:

 •  the 10 November 2020 arbitral award gave effect to the 28 June 2004 Concession Agreement, which is tainted by corruption;

 •  the 10 November 2020 arbitral award breached Decree no. 85/1278 of 26 September 1985, the Port Policing and Operations Regulations;

 •  the 10 November 2020 arbitral award failed to respect the res judicata effect of the Administrative Court of Douala's 26 December 2019 judgment, pursuant to Article 41 of the Agreement of 21 February 1974 between France and Cameroon on Co-operation in Judicial Matters; and

 •  the 10 November 2020 arbitral award breached the principle that legal and regulatory provisions cannot have retroactive effect;

In any event,

- Set aside the Arbitral Tribunal's arbitral award before the International Court of Arbitration of the International Chamber of Commerce in Paris dated 10 November 2020 and uphold Port Autonome de [Municipality 2]'s claims;

- Dismiss [Municipality 2] International Terminal's claims, pleas and submissions in their entirety;

- Dismiss [Municipality 2] International Terminal's claim for damages and its claim under Article 700 of the French Civil Procedure Code;

- Order [Municipality 2] International Terminal to pay EUR 200,000 pursuant to Article 700 of the French Civil Procedure Code;

- Order [Municipality 2] International Terminal to pay costs directly to Mr ETEVENARD.

19. In its final responding submissions (no. 2), submitted electronically on 10 February 2022, [Municipality 2] International Terminal asks the court, pursuant to Articles 1466, 1506, 1518 and following of the French Civil Procedure Code, Article 1240 of the French Civil Code and Article 32-1 of the French Civil Procedure Code, to:

- Dismiss Port Autonome de [Municipality 2]'s claim under Article 1520(2) of the French Civil Procedure Code in respect of matters that Port Autonome de [Municipality 2] has waived;

- Dismiss all of Port Autonome de [Municipality 2]'s claims on the basis of Articles 1520(2), 1520(3) and 1520(5) of the French Civil Procedure Code;

- Declare and decide that Port Autonome de [Municipality 2]'s application to set aside the partial award rendered on 10 November 2020 is without merit;

- Furthermore, dismiss all of Port Autonome de [Municipality 2]'s claims, pleas and submissions; and

- Order Port Autonome de [Municipality 2] to pay [Municipality 2] International Terminal damages of one (1) euro for abuse of process under Article 1240 of the French Civil Code and Article 32-1 of the French Civil Procedure Code.

In any event:

- Order Port Autonome de [Municipality 2] to pay [Municipality 2] International Terminal EUR 200,000 to pursuant to Article 700 of the French Civil Procedure Code; and

- Order Port Autonome de [Municipality 2] to pay full costs.

20. The pre-merits-hearing phase was ordered closed on 21 June 2022.

III/ REASONS FOR THE DECISION

- Waiver of the right to invoke the improper constitution of the tribunal (Article 1466 of the French Civil Procedure Code)

21. DIT argues that PAD has waived its right to rely on the improper constitution of the arbitral tribunal because it did not raise this complaint in a timely manner before the arbitral tribunal and that it did not file a challenge on this basis.

22. In its reply, PAD argues that it relied on facts previously unknown to it, which came to light on 15 April 2021, the date on which the eulogy for Mr Gaillard was published, to submit a challenge of Mr. [L] to the ICC on 20 April 2021, while the final phase of the arbitration was underway, and that it had therefore not waived its request, having not exceeded the thirty-day time limit set out in Article 14(2) of the 2017 ICC Rules of Arbitration. It also argues that none of the fact facts relied on were public knowledge and that they only came to light with the publication of the eulogy.

Given the above:

23- According to Article 1466 of the French Civil Procedure Code, made applicable to international arbitration by Article 1506 of that Code, “a party who, knowingly and without a legitimate reason, fails to raise an irregularity in a timely manner before the arbitral tribunal is deemed to have waived the right to invoke it”.

24. The ground advanced in this respect, based on which DIT incorrectly seeks to have the claim dismissed, is an admissibility objection within the meaning of Article 122 of the French Civil Procedure Code, as PAD correctly explains in its written submissions; it must therefore be treated as such.

25. This provision is not limited to procedural irregularities, but rather covers all complaints that may give rise to an application to set aside an arbitral award, except grounds based on Article 1520-5 of the French Civil Procedure Code alleging that the recognition or enforcement of the award would breach substantive international public policy. The complaint raised, which makes up the ground for set-aside based on improper constitution of the arbitral tribunal, is therefore subject to Article 1466 referred to above.

26. It follows from these provisions that a party that knowingly fails to exercise its right to challenge an arbitrator within the time limit provided for in the applicable arbitration rules, on the basis of any circumstance such as to call into question the independence or impartiality of an arbitrator, shall be deemed to have waived its right to do so before the court hearing a set-aside application.

27. Pursuant to Article 14.2 of the version of the ICC Rules in force in 2017, which applies to this arbitration, a challenge based on an alleged lack of impartiality or independence on the part of the arbitrator “must be submitted by a party either within 30 days from receipt by that party of the notification of the appointment or confirmation of the arbitrator, or within 30 days from the date when the party making the challenge was informed of the facts and circumstances on which the challenge is based if such date is subsequent to the receipt of such notification.”

28. Regarding the alleged breach of the obligation to disclose the friendship between the president of the arbitral tribunal and counsel for one of the parties, the starting point invoked by the PAD is 15 April 2021, the date on which the president's eulogy to the counsel was published, as the friendship had never previously been disclosed.

29. Given that the doubts thus raised by PAD as to the arbitrator's independence and impartiality relate to facts that came to light after the arbitral award was rendered, the company cannot be deemed to have waived its right to rely on them during the arbitral proceeding, such that the ground must be held to be admissible before the court hearing the set-aside application.

- The ground as to whether the arbitral tribunal was improperly constituted(Article 1520(2) of the French Civil Procedure Code)

30. PAD contends that the arbitral tribunal was improperly constituted on the grounds that its president, appointed by the two co-arbitrators, does not meet the independence and impartiality requirements.

31. It submits that the president of the arbitral tribunal failed to make a number of disclosures about facts that were not public knowledge in his statement of independence, and that it was only when it read the eulogy that he wrote in honour of Emmanuel Gaillard, counsel for the opposing party, in April 2021, after the Mr Gaillard's sudden death, that doubts about the president's impartiality became certainties.

32. It argues that if Emmanuel Gaillard had not passed away, it could not have known that the two were such good friends that they spent holidays together, that Mr [L] regularly consulted Emmanuel Gaillard and that he had great admiration for him, so much so that he concluded his eulogy with: “I admired and loved him”; this love born of admiration shows that the president was unduly attached to Professor Gaillard, in a way.

33. PAD submits that there is sufficient evidence of current, deep, close, strong and long-standing ties between them, and notes in particular that Mr. [L] was Professor Gaillard's student and a member of his thesis examination committee.

34. It states that Emmanuel Gaillard was the founding partner and managing partner of the Shearman & Sterling law firm in [Municipality 4], and that it was to him that DIT gave a power of attorney to represent it in the arbitration against PAD and that he signed the request for arbitration.

35. It concludes from this that such ties give PAD a reasonable doubt as to the arbitrator's independence and impartiality.

36. It adds that personal and professional ties between Mr [L] and the Shearman & Sterling law firm through Ms [P], Mr [S]'s wife, which were not public knowledge, were discovered beginning on 17 November 2021, and that Mr [L]'s 14 April 2019 statement of independence is therefore inaccurate and incomplete, and that he deliberately failed to disclose his ties with Mr [S], the co-arbitrator appointed by DIT. In this regard, it states that it learned that these two arbitrators were members of the thesis examination committees for several private law doctoral theses defended in 2015 and that Mr [L] has ties with Mr [S]'s wife, Ms [P], who was a member of the Shearman & Sterling team alongside Emmanuel Gaillard and whose doctoral thesis examination committee was chaired by Mr [L]. It explains that Mr [S]'s wife is a lecturer in the department at the University of [5], at which Mr [L] is a professor.

37. It argues that these undisclosed facts show Mr [L]'s lack of independence, impartiality and transparency, and that, at a minimum, he breached his disclosure obligation, which covers the arbitrators' relationships with each other and with each of the parties, as the arbitration continues towards the final award.

38. In response, DIT states that, since the arbitration began, PAD has contested everything, and that it had already begun to "mount" its attack as early as November 2020, by publishing an article in the Repères magazine, which alleges "bias" on the part of the arbitral tribunal, implicating Mr [L] and Mr [S].

39. Regarding the ground alleging that the constitution was improper, it recalls that a finding as to lack of independence and impartiality must be made on an objective basis and must give rise to reasonable doubt in the parties' minds as to such independence or impartiality. It submits that there is no evidence to show that the president of the tribunal lacked independence and impartiality and breached his disclosure obligation. Indeed, DIT asserts that there was no close personal relationship between Mr [L] and Professor Gaillard, within the meaning of the ICC memorandum, but rather that their relationship was purely professional and university-related. The eulogy that the president of the arbitral tribunal gave for Professor Gaillard, which was published publicly, must be considered in context, taking into account Professor Gaillard's role as an emblematic figure in the international arbitration world, and its nature, which is inherently laudatory and exaggerated.

40. DIT also submits that the facts of which PAD claims to have become aware following the eulogy, namely Professor Gaillard's participation as rapporteur on Professor [L]'s thesis examination committee, their joint participation in professional conferences in 2005 and 2006 in Brazil and Colombia, and the participation of Professors [L] and [S] in the same thesis examinations as examination committee members, or that Mr [L] chaired Ms [P]'s thesis examination committee, are facts that were public knowledge and did not need to be disclosed (information that is public and easily accessible) and that, in any event, were not such as to give rise to reasonable doubt as to the independence and impartiality of the president of the arbitral tribunal. It submits that there is no dispute that there were no financial ties or business dealings between the president of the tribunal and Professor Gaillard or Shearman & Sterling.

Given the above:

41. Under Article 1520 of the French Civil Procedure Code, a set-aside application may only be made in one of the circumstances set out in that Article. Pursuant to paragraph 2 of that article, a set-aside application may be made if the arbitral tribunal was improperly constituted.

42. Under Article 1456, paragraph 2 of the French Civil Procedure Code, which is applicable to international arbitration pursuant to Article 1506 of that Code, arbitrators must disclose any circumstances likely to affect their independence or impartiality before accepting their appointment. Arbitrators must also immediately disclose any circumstances of a similar nature that may arise after they have accepted their appointment. All of these obligations are set out in the ICC Rules applicable to ICC-administered arbitrations.

43. The content of the disclosure obligation is not specified, as Article 1456 of the French Civil Procedure Code codified the substantive judge-made rule that imposes a general disclosure obligation on arbitrators.

44. However, as this is an ICC-administered arbitration in which the parties have agreed to be bound by the ICC Rules (2017 version), the arbitrator must apply these Rules and refer to the recommendations issued in this regard by the ICC (see “Note to parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of Arbitration dated 1 January 2019”), which gives the arbitrator an objective frame of reference for meeting this obligation.

45. Article 11 of those Rules provides:

“1. Every arbitrator must be and remain impartial and independent of the parties involved in the arbitration.

2. Before appointment or confirmation, a prospective arbitrator shall sign a statement of acceptance, availability, impartiality and independence. The prospective arbitrator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality. The Secretariat shall provide such information to the parties in writing and fix a time limit for any comments from them.

3. An arbitrator shall immediately disclose in writing to the Secretariat and to the parties any facts or circumstances of a similar nature to those referred to in Article 11(2) concerning the arbitrator’s impartiality or independence which may arise during the arbitration.”

46- The recommendations issued by the ICC to determine when a disclosure obligation arises state that the circumstances that an arbitrator must specifically assess include, but are not limited to, those in which the arbitrator or their law firm:

“ - represents or advises, or has represented or advised, one of the parties or one of its affiliates; 

- acts or has acted against one of the parties or one of its affiliates;

- has a business relationship with one of the parties or one of its affiliates, or a personal interest of any nature in the outcome of the dispute;

- acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise;

- has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality;

- has a professional or close personal relationship with counsel to one of the parties or the counsel’s law firm;

- acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates;

- acts or has acted as arbitrator in a related case; and

- has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel’s law firm.”

47. These documents show that "close professional or personal relationships" between an arbitrator and a party's counsel are special circumstances that arbitrators must take into account when making their statement of independence and throughout the arbitration.

48. Apart from these circumstances which are objective factors that must be disclosed, arbitrators must disclose circumstances which, although not included in this list, may be such as to give rise to reasonable doubt in the parties' minds as to the arbitrator's independence and impartiality, that is, doubts that may arise in a person in the same situation who has access to the same reasonably available information.

49. If an arbitrator is unsure about the disclosures to be made, Article 2 of the ICC recommendations states that “any doubt must be resolved in favour of disclosure”.

50. Lastly, arbitrators are exempted from having to disclose facts that are public knowledge, i.e. facts that are easily accessible through publicly available sources that the parties must have accessed before the arbitration began. This exemption ends once the arbitration is underway.

51- It is against this backdrop that we must determine whether the president of the arbitral tribunal was exempt from disclosing, at the time of his appointment and, in particular, in the statement of independence that he provided on 14 April 2019, and subsequently throughout the arbitration proceedings, the ties that he had with Emmanuel Gaillard, the Shearman & Sterling lawyer personally appointed by DIT on 16 January 2019 to represent it in its arbitration against PAD, and whether those ties were such as to give rise to reasonable doubt in the parties' minds, and in PAD's mind in particular, as to his independence and impartiality.

- The disclosure obligation

52. It is clear from the exhibits submitted into the record, and in particular from the president of the arbitral tribunal's statement of acceptance and independence, that his acceptance was accompanied by disclosures.

53. In this regard, on an attached sheet, he stated:

“I confirm that I am completely independent from the parties, their counsel on the record at this time, and the co-arbitrators in this case.

So that the parties have complete information, I disclose that I am currently sitting as co-arbitrator in an ICC arbitration, in which I was appointed by a party adverse to Cameroon. Of course, this arbitration is not connected or related with this case in any manner whatsoever.

For even greater transparency, and going beyond what is generally expected in a statement of independence, I provide the following additional information:

- I am currently sitting as a co-arbitrator in an ICC arbitration involving telecommunications in Africa, in which I was appointed by a party represented by McDermott Will & Emery, where Professor [N] [S] is of counsel. We are in the process of drafting the award;

- over the past twenty years, I have twice been appointed co-arbitrator by parties represented by Shearman & Sterling, in 2008 and in 2015 (by a partner who has now left the firm), in cases that had nothing to do with this case. In both cases, there was a settlement during the arbitration, and the first case settled before the terms of reference were signed;

- in 2000, I was co-counsel for France Telecom in an ICC arbitration against Intelcam (a Cameroonian telecommunications company). The award was rendered over 18 years ago, on 9 January 2001, and I have not done any work for France Telecom since then;

- I am the current editor of an arbitration law handbook, to which the two co-arbitrators in this case are contributing.

Clearly, none of these factors calls into question my complete independence or impartiality in any way, but I wanted to identify them for the sake of full transparency and to ensure that the parties have complete information.”

54. PAD alleges that the statement is incomplete as regards both the ties with Mr [S], the co-arbitrator, and those with Emmanuel Gaillard, counsel for the adverse party.

- The president's ties with one of the co-arbitrators

55. Contrary to PAD's argument, the professional ties that may exist between lawyers and law professors, especially in international arbitration, and in particular in academic circles at the doctoral level and for thesis examination committees, in no way imply, by their very nature, that "close" professional or personal relationships exist within the meaning of the ICC guidelines mentioned above, as these relationships can be described as academic or scientific, at their highest.

56. Since PAD did not submit any evidence showing that there were close ties between Mr [L] and Mr [S] that went beyond the traditional confines of this type of academic relationship, Mr [L] cannot be criticised for failing to disclose that Mr [S], the co-arbitrator appointed by DIT, who together with Mr [J], the co-arbitrator appointed by PAD, appointed him as president of the arbitral tribunal, had participated in two thesis examination committees in 2015, one with Mr [L] and the other with Emmanuel Gaillard. These purely academic factors are not capable of giving rise to any doubt in the parties’ minds as to the independence and impartiality of the president of the arbitral tribunal, and therefore did not need to be disclosed.

57. As regards the pre-2014 partner relationships within Shearman & Sterling concerning Emmanuel Gaillard and Mr. [S]'s wife, which have nothing to do with the president of the arbitral tribunal, there is nothing in the provisions referred to above that would require the president of the arbitral tribunal himself to disclose them.

58. The ground of appeal alleging that the arbitral tribunal was improperly constituted because there were close professional ties between the president of the arbitral tribunal and one of the co-arbitrators is therefore dismissed.

- The president's ties with one party's counsel

59. With respect to academic and university ties, it is clear from the exhibits submitted into the record that Mr [L] had been in regular contact with Emmanuel Gaillard for several years.

60. In accordance with the principles set out above, by their nature, such academic ties do not need to be disclosed.

61. As regards the friendship between the arbitrator and DIT's counsel in the arbitration against PAD, PAD relies on the eulogy written by Mr [L] and published in the Dalloz journal in memory of Emmanuel Gaillard, who died suddenly in April 2021, to argue that this friendship should have been disclosed.

62. The eulogy states the following: “It was under these circumstances that I was to meet him again in three weeks at hearings where he was to appear as counsel, and I, as arbitrator. I was looking forward to hearing again his impressive knife-edge pleadings, where his precision and overreaching vision seduced me much more than any histrionic outbursts. This meeting will not take place, nor will our regular meetings that were ongoing since January 2000, when he sat as rapporteur as part of my thesis examination committee. We became friends immediately after, ignited by the same passion and the same conception of international arbitration. During our travels and trips abroad, particularly to Brazil and Colombia, our friendship took on a more personal note, as Emmanuel, who rarely did so, was finally opening up. For my part, I consulted him before making any important decision. He was a joyful, funny, generous, brilliant, caring and yet humble person. He had a youthful appearance, a healthy and athletic lifestyle that could not have foreshadowed such a near and brutal end. I think of his two sons whom he was so close with. I think of his partners and associates. I think of all those he inspired or trained. I think of the abysmal void he has left behind that will never be filled. He was a master, a mentor and a role model whose legacy will live on. I admired and loved him.”

63. DIT rightly highlights the special context in which the publication arose, involving a degree of emphasis and exaggeration inherent in eulogies. In these particular circumstances, contrary to PAD’s submission, the parting words (“I admired and loved him”) cannot be considered to reflect that the author was unduly attached to Professor Gaillard, but rather as paying tribute to a respected figure in arbitration law.

64. Although the statements are of a personal nature, they nevertheless evidence the friendship between the author and Professor Gaillard, regarding which Mr [L] states, in particular, that he consulted Professor Gaillard “before making any important decision”, thus revealing that the friendship had grown closer than an ordinary one, which is further confirmed by the statement that the deceased was “opening up” to him, even though the author stresses how unusual this was for Professor Gaillard (“who rarely did so”).

65. The closeness and intimacy that this reveals are such that, unless the concept is stripped of its substance, the relationship can only be regarded as constituting close personal ties.

66. The clarification given by the eulogy's author in a letter to the ICC dated 28 April 2021, submitted by DIT, to the effect that he had not seen the deceased alone since 2019 and had never consulted him during his career on decisions to be taken in relation to arbitration, is irrelevant in this respect since the arbitration at issue began in January 2019.

67. In these circumstances and having regard to these factors, it follows that the president of the arbitral tribunal was required to disclose the existence of this relationship in his statement.

- A reasonable doubt in the parties' minds

68. It is well established that an arbitrator's failure to disclose the existence of close personal ties with one of the parties or its representative is not sufficient, in and of itself, to constitute a lack of independence or impartiality. The undisclosed information must also be such as to give rise to a reasonable doubt in the parties' minds as to his 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. This must be assessed objectively, taking into account the particular circumstances of the case.

69. In this case, it is by nature an exaggeration, specific to the eulogy context, for one academic to laud another’s renown and influence on arbitration law, and to use superlatives to describe him, regarding both his practice as a lawyer and his personal attributes. Even though the deceased was counsel to one of the parties, this alone does not give rise to a reasonable doubt in the parties' minds as to the arbitrator's impartiality and independence, particularly since, as DIT notes, eulogies praising Emmanuel Gaillard's virtues have come from all over the world and from all arbitration venues.

70. However, to draw a connection between the existence of the close personal ties referred to above and an ongoing arbitration, with the statement: “[i]t was under these circumstances that I was to meet him again in three weeks at hearings where he was to appear as counsel, and I, as arbitrator. I was looking forward to hearing again his impressive knife-edge pleadings, where his precision and overreaching vision seduced me much more than any histrionic outbursts. This meeting will not take place, nor will our regular meetings [...]” together with the statement that he consulted him“ before making any important decision”, while the arbitration of which he was the president was ongoing between the same parties, is a circumstance which, without calling into question his intellectual and professional integrity, was of such a nature as to lead the parties to believe that the president of the arbitral tribunal might not be able to decide freely, and thus to give rise to reasonable doubt in PAD's mind as to the arbitrator's independence and impartiality.

71. It follows from the above that the arbitral tribunal was improperly constituted.

72. The award must therefore be set aside on this basis, and there is no need to decide on the other grounds of appeal.

- The claim for an order for abuse of process

73. Since PAD's application for set-aside has been granted, DIT's request for an order finding that the proceedings were unfair is moot and must therefore be dismissed.

IV/ DISCRETIONARY COSTS

74. As the unsuccessful party, DIT shall pay the costs of the proceedings and 50,000 euros to PAD under Article 700 of the Civil Procedure Code.

V/ OPERATIVE PROVISION

Operative provision

For these reasons, the Court:

1- Dismisses the admissibility objection based on article 1466 of the Civil Procedure Code;

2- Sets aside the ICC partial arbitral award issued 10 November 2020 (no. 24211/DDA);

3- Dismisses the claim for compensation for abuse of process;

4- Orders DIT to pay PAD 50,000 euros under Article 700 of the Civil Procedure Code;

5- Orders DIT to pay costs.

THE CLERK, THE PRESIDING JUDGE

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