National Iranian Oil Company v. Crescent Petroleum

The Swiss Federal Supreme Court dismissed a request for review of an interim award rendered by a three-arbitrator tribunal based on comments a co-arbitrator made on Swiss television alleged to show bias against Muslims.

Key takeaways: 

🔹Timing is everything: justifiable doubts as to the arbitrator’s independence or impartiality must exist as of the date of the award

🔹Even if statements made after the award give rise to justifiable doubts as to the arbitrator’s impartiality at the time the statement was made, this does not mean that such doubts existed as of the date of the award 

🔹Corroborating evidence is needed to establish that post-award statements raise justifiable doubts as to arbitrator impartiality existing at the time of the award

🔹The court is not bound by arbitral institution decisions on impartiality challenges, regardless of whether the challenge was upheld or dismissed 

The institution had accepted the challenge, finding that the arbitrator “had used strong language and a harsh tone likely to give rise to justifiable doubts as to his impartiality”. 

The Court held that this did not mean that those same doubts existed at the time of the interim award under review. For the Court, an approach that assumes that statements made after the award evidence bias that existed at the time of the award would “be tantamount to reversing the burden of proof”, “lead to a slippery slope” and “leave the door open to all sorts of misuse”. 

The statements were made more than three years later. Views are not “set in stone” and are “likely to evolve over time”. 

Thus, corroborating evidence is required before concluding that a statement that post-dates an award gives rise to justifiable doubts as to the arbitrator’s impartiality. 

Here, the evidence was to the contrary, as the arbitrator had in the past vocally supported persons of the Muslim faith and defended their freedom of speech. 

The request for review was dismissed. 

The original decision is available here: Tribunal fédéral suisse 

Swiss Federal Supreme Court  

4A_572/2023  

Judgment dated 11 June 2024  

1st Civil Law Court  

Composition: 

Federal Judges 

Jametti, Presiding Judge, Hohl, Kiss, Rüedi and May Canellas. 

Clerk: Mr. O. Carruzzo. 

Participants in the proceeding 

A.________, 

represented by lawyers Sébastien Besson, Antonio Rigozzi, Silja Schaffstein and Eolos Rigopoulos, 

Applicant, 

against  

1. B.________ Limited, 

2. C.________ Limited, 

both represented by lawyers Philippe Bärtsch, Anya George, Christopher Boog and Anne-Carole Cremades, 

Respondents. 

Subject matter 

international arbitration, 

request for review of the award rendered on 5 May 2020 by an arbitral tribunal seated in Geneva (PCA Case no. 2019-03). 

Facts:  

A.  

A.a. On 25 April 2001, B.________ Limited ( "B.________"), a company incorporated in Bermuda whose main address is in the United Arab Emirates, and A.________, a company established under Iranian law ( "A.________"), entered into a contract entitled "Gas Sales and Purchase Contract" ("GSPC"), under which A.________ agreed to supply certain quantities of gas to its contractual counterparty and to transport those quantities to the delivery location that the parties had agreed upon.  

In 2003, B.________ assigned the GSPC to C.________ Limited ( "C.________"), a company incorporated in the British Virgin Islands whose main address is in the United Arab Emirates. 

A.________ never delivered any gas to B.________ and C.________. 

A.b. In an award dated 31 July 2014, a London-seated arbitral tribunal found that A.________ had breached its gas delivery obligations under the GSPC and was continuing to breach its commitments.  

B.  

B.a. On 28 June 2018, B.________ and C.________ brought a new arbitration against A.________, pursuant to the arbitration clause in the GSPC, in which they sought damages for the failure to deliver gas beginning on 1 August 2014 and for consequential losses. The Claimants' preliminary estimate of their damages is USD 18.6 billion, representing USD 5.7 billion for the period between 31 July 2014 and 28 June 2018 and USD 12.9 billion for the period from the date on which the request for arbitration was filed until the GSPC expires in December 2030.  

A three-arbitrator tribunal was constituted, with the Permanent Court of Arbitration (PCA) administering the arbitration. The arbitration is seated in Geneva and English has been chosen as the language of arbitration. The arbitral tribunal was comprised of arbitrators Charles Poncet and Klaus Sachs, appointed respectively by the Claimants and the Respondent. Laurent Aynès, a partner in a French law firm, was appointed as President by the co-arbitrators on 20 February 2019. 

On 18 April 2019, the Claimants informed the Arbitral Tribunal that they had terminated the GSPC on 11 September 2018. 

In its 30 July 2019 decision, the Arbitral Tribunal found that it had jurisdiction over the dispute between the parties. No application against this decision has been brought before the Swiss Federal Supreme Court. 

On 5 and 6 February 2020, a hearing took place before the Arbitral Tribunal on the issue of whether the termination of the GSPC was valid. 

In an award dated 5 May 2020, entitled "Award on Termination", the Arbitral Tribunal held that the GSPC had been validly terminated on 11 September 2018. It specified that costs would be dealt with in the final award. 

B.b. On 4 June 2020, A.________ brought a civil application before the Federal Supreme Court seeking that the award be set aside.  

In its 24 July 2020 judgment (case 4A_300/2020), the Federal Supreme Court ruled that the application was inadmissible. In short, it held that the decision under review had to be characterised as an interim award. Yet A.________ had not raised any admissible ground under Article 190(3) of the Federal Act on Private International Law of 18 December 1987 (PILA; RS 291). 

B.c. The proceeding continued before the Arbitral Tribunal. During the proceeding, on 27 February 2023, the Respondent challenged President Laurent Aynès, who had previously refused to step down, relying on Schedule 2 to the GSPC, which gave the International Court of Arbitration of the International Chamber of Commerce (the "ICC") jurisdiction to rule on any challenge.  

In its 23 March 2023 ruling, the ICC accepted the challenge to the President of the Arbitral Tribunal. 

On 4 May 2023, arbitrator Klaus Sachs resigned from his position. 

On 30 May 2023, A.________ submitted a request for review of the interim award rendered on 5 May 2020 seeking that it be set aside, on the grounds that various matters called into question the independence and impartiality of the President of the Arbitral Tribunal, pursuant to Art. 190a(1)(c) of the PILA (case 4A_288/2023). 

B.d. Since September 2022, Charles Poncet has been a regular host of a programme broadcast on a Geneva television channel, in which he discusses various political and social issues. The show broadcast on 31 August 2023, entitled "Cachez ce sein!” (Hide that Breast!), dealt with a controversial social issue – the aggressive attitude of certain members of the Muslim faith towards women swimming in Swiss swimming pools sporting swimwear those people consider inappropriate. In a monologue lasting a few minutes (the “Monologue”), Mr Poncet lambasted the conduct of "the pashas of Islamic virtue", whom he also described as "prudish microcephalics". 

The comments he made on the show included:  

[...]

"They are not content with forcing their miserable daughters or partners to cover themselves from head to toe in a grotesque get-up that guarantees they will die of heat before getting in the water, while at the same time risking catching a bad cold when getting out of the pool. These fathers of modesty or mothers of modesty are trying to control our daughters' and partners' freedom to go swimming as they please. They have no problem resorting to humiliation and using the rudest language possible to achieve that. A burkini-clad hag might snarl 'Cover up, slut!' as she walks past an attractive Swiss woman in a flattering bikini at the pool. A bearded, pot-bellied pasha might quickly add, 'You're not ashamed of exposing yourself like that?', his scowling gaze fixed on the young woman's crotch doing nothing to hide his accent, which we'll call exotic.  [...]

And now we're supposed to put up with bearded hypocrites stopping young women from sunbathing when they feel like it? [...] If some idiot wants to be covered up from head to toe to go swimming, good for her. But there’s no way we can tolerate a bunch of mentally-retarded, sectarian, puritanical, prudish people purporting to impose their way of doing things on other people and telling them what to do. [...]

We urgently need to crack down and impose, and I do mean impose, tolerance of others on these little pashas. They should be slapped with heavy fines and reprimands, and excluded by force and without legal process from public establishments if they attack free young women [...] who, if we don't step in, will very quickly be forced to submit to these modern-day hypocrites [...]." 

After unsuccessfully asking arbitrator Charles Poncet to resign, A.________ challenged him before the ICC on 28 September 2023. 

The Claimants and the impugned arbitrator submitted that the challenge should be dismissed. 

By decision dated 7 November 2023, the reasons for which were sent to the parties on 16 January 2024, the ICC accepted the challenge to arbitrator Charles Poncet. The reasons for this decision are summarised below. 

C.  

On 27 November 2023, A.________ (the "Applicant") filed a new request before the Federal Supreme Court for review of the interim award issued on 5 May 2020 (case 4A_572/2023), based on Art. 190a(1)(c) of the PILA, on the grounds that facts had come to light that were likely to cast serious doubt on arbitrator Charles Poncet's impartiality. It requested that cases 4A_288/2023 and 4A_572/2023 be joined and maintained this request in the letter it sent to the Federal Supreme Court on 26 January 2024. In the pre-merits-hearing phase, it asked the federal judges hearing the case to watch the Monologue "to get a better sense of” the impugned arbitrator’s “tone and facial expressions". 

By letter dated 19 December 2023, Laurent Aynès advised that the Arbitral Tribunal that had rendered the award under review was no longer in a position to decide the case, given that two of the arbitrators had been successfully challenged and the third had resigned. 

In their reply of 8 February 2024, the Claimants in the arbitration (referred to below as the "Respondents") argued that the request for review was inadmissible and, in the alternative, that it should be dismissed. They also submitted that the opposing party's request to join the cases should be dismissed. 

The Applicant filed a reply, which prompted the Respondents to file a rejoinder. 

Whereas, as a matter of law:  

1.  

Pursuant to Art. 54(1) of the Swiss Federal Supreme Court Act of 17 June 2005 (SFSCA; RS 173.110), the Swiss Federal Supreme Court prepares its judgment in an official language. As a general rule, it does so in the language of the decision under review. Where the decision was rendered in another language (in this case, English), the Court uses the official language chosen by the parties. They used English before the Arbitral Tribunal and French in their written submissions to the Federal Supreme Court. In keeping with its practice, the Federal Supreme Court will therefore issue its judgment in French. 

2.  

The Arbitral Tribunal is seated in Geneva. None of the parties had their registered office in Switzerland at the relevant time. Therefore, the provisions of chapter 12 of the PILA apply (PILA, Art. 176(1)). 

3.  

The Applicant requests that this proceeding be joined with case 4A_288/2023. It this case, the two requests for review are admittedly closely related, since they are directed against the same award and are based on an identical legal foundation (PILA, Art. 190a(1)(c)). That being said, the circumstances invoked in support of each of the requests for review are quite different and involve different arbitrators. The answers to the various problems raised in the two cases in question – which do not necessarily overlap – are also likely to be different. In these circumstances, the Court is of the view that, from a procedural economy perspective, it is not desirable to grant the request to join the cases. 

4.  

All procedural laws provide for a point in time when decisions in legal cases become definitive, whether they are issued by state authorities or private tribunals. Indeed, there always comes a time when the actual truth, if it can be ascertained at all, must yield to the legal truth, however imperfect it may be, failing which legal certainty will be at risk. There are, however, extreme situations in which a sense of justice and fairness demands that a decision already in force should not stand because it is based on faulty premises. The purpose of a review is precisely to rectify this situation (ATF 142 III 521 recital 2.1 and the references cited). 

4.1. Since 1 January 2021, the PILA has included provisions on the review of international arbitral awards. These apply to requests for review submitted to the Federal Supreme Court after 1 January 2021, even if the award under review was rendered before that date. (SFSCA, Art. 132; ATF 148 III 436 recital 3.1 and the references cited).  

4.2. The Federal Supreme Court is the judicial authority with jurisdiction to hear requests for review of international arbitral awards (PILA, Art. 191), whether they are final, partial or interim awards (ATF 149 III 277, recital 3.2; judgment 4A_36/2020 of August 27, 2020, recital 2.2). The decision under review must bind the arbitral tribunal, as in principle only decisions that have come into force may be the subject of a request for review. An interim award settling one or more preliminary merits or procedural issues, as is the case of the award under review, is binding on the arbitral tribunal that rendered it, which is why it may be the subject of a request for review. On the other hand, a simple procedural order that may be amended or revoked in the course of the proceeding cannot be the subject of a request for review (ATF 149 III 277, recital 3.2 and the references cited).

4.3. Under Art. 119a(2) of the SFSCA, review proceedings are governed by Art. 77(2bis) and Art. 126 of the SFSCA. If the Federal Supreme Court grants the request for review, it may set aside the award and refer the case back to the arbitral tribunal so that it may decide it anew, or may make the necessary findings (SFSCA, Art. 119a(3)).  

5.  

Relying on Article 190a(1)(c) of the PILA, the Applicant submits that, several years after the contested interim award was rendered, it discovered facts capable of giving rise to justifiable doubts as to the impartiality of arbitrator Charles Poncet. Therefore, it argues that its request for review should be granted, and that the decision be set aside as a result. 

5.1. Review of an international arbitral award may be sought on any of the grounds set out in Art. 190a of the PILA. A request for review is admissible only if there is an interest that warrants protection. It must be filed with the Federal Supreme Court within 90 days of the grounds for review coming to light, subject to suspension of this statutory deadline in the circumstances provided for in Article 46 of the SFSCA, failing which the right to do so will be forfeited (PILA, Art. 190a(2); judgment 4A_69/2022 of 23 September 2022, recital 4.2.1, not published in ATF 148 III 436; 4A_247/2014 of 23 September 2014, recital 2.3). A review may not be requested more than ten years after the award becomes legally binding, except in the circumstances provided for in Article 190a(1)(b) of the PILA (PILA, Art. 190a(2)). Where several grounds for review are raised, the time limit begins to run separately for each of them (ATF 149 III 277, recital 4.1.2 and the references cited). Compliance with the time limits referred to in Art. 190a(2) of the PILA is an admissibility issue, not a merits one, in contrast to the issue of whether the applicant delayed in discovering the ground for review relied upon (judgments 4A_247/2014, cited above, recital 2.3; 4A_688/2012 of 9 October 2013, recital 4.3; 4A_570/2011 of 23 July 2012, recital 4.1 and 4A_222/2011 of 22 August 2011, recital 2.1). The onus is on the applicant to establish the facts probative of whether the time limit was complied with (ATF 149 III 277, recital 4.1.2 and the references cited).  

5.2. Here, the Applicant states that it became aware of the Monologue broadcast at the end of August 2023 at the beginning of September 2023. In any event, it stresses that the ground for review it raises, that the relevant arbitrator was not impartial because of his comments in the Monologue, could not have been discovered until 31 August 2023. The Applicant contends that it acted in a timely manner by filing its request for review with the Federal Supreme Court on 27 November 2023.

5.3. The Respondents do not assert that the Applicant filed its request for review after the expiry of the 90-day period referred to in Art. 190a(2) of the PILA. Rather, they submit that the request for review is inadmissible because the Applicant has no standing to have the award under review set aside, relying on Art. 76(1)(b) of the SFSCA, which applies by analogy in revision matters, and on recital 5.5 of the Federal Supreme Court’s judgment of 8 April 2021 in case 4A_516/2020. They argue that the Applicant has nothing to gain from its request for review being admitted, since a new decision on the validity of the termination of the GSPC by a newly constituted arbitral tribunal would not lead to a different outcome from that of the award under review.  

This is not the case. The Applicant does have standing to have the award set aside to the extent that the award ruled against it. Moreover, to hold otherwise would be inconsistent with the formal nature of the ground for review set out in Art. 190a(1) (c) of the PILA, which is not conditional on the ground having had an impact on the impugned decision. In any event, the Respondents are attempting to bring up merits issues, which is not permitted, and to rely in that context on the award issued in London in a parallel arbitration, which is irrelevant. Furthermore, the terms employed by the Respondents, and their repeated use of the conditional tense, show that they are unsure as to what any newly constituted arbitral tribunal might decide regarding the validity of the disputed termination. 

The request for review should therefore be considered on its merits. 

6.  

In their respective written submissions, the parties extensively addressed the scope of decisions made by private bodies, such as the ICC, on arbitrator challenges. 

In summary, the Applicant submits that ICC decisions accepting a challenge are binding on the Federal Supreme Court and cannot therefore be indirectly reviewed by the Court in the context of a request for review under Art. 190a(1)(c) of the PILA. It submits that the opposite approach applies to dismissed challenges. In its view, the Federal Supreme Court would thus remain free to review the circumstances put forward in support of challenges dismissed by the ICC. The Respondents argue that the ICC accepting a challenge does not preclude the Federal Supreme Court from indirectly reviewing the merits of the decision made by that private-law body in the context of an action to set aside or a request for review. The parties concede, however, that the Federal Supreme Court’s decisions on this issue in the context of actions for set aside under Art. 190(2)(a) of the PILA also apply mutatis mutandis to requests for review under Article 190a(1)(c) of the PILA.  

6.1. In this case, the ICC upheld the challenge to arbitrator Charles Poncet in its 7 November 2023 decision, for which reasons were given on 16 January 2024. It essentially found that the views he expressed in the Monologue went beyond merely criticising the behaviour of a specific group of individuals in Swiss swimming pools, in that these views were mixed with other unfortunate expressions that could be perceived as portraying Muslims in an offensive way. According to the ICC, the impugned arbitrator appeared to be expressing contempt for Islamic religious beliefs on wearing burkinis. Although the ICC noted that the impugned arbitrator's comments made no reference to wearing Muslim headscarves, it nevertheless found that the repeated references to burkinis could be associated more generally with wearing Muslim headscarves. In the ICC’s view, an impartial person watching the Monologue would very likely be left with the impression that the arbitrator in question is scornful of, and regards as hypocritical, what he perceives to be religious sanctimoniousness on the part of Muslims who insist that women wear headscarves, and that he feels that women wearing headscarves are being treated derisively. While the comments were not directed at all Muslims, the ICC felt that they should be understood as being aimed at those who hold a strict view of their religion, particularly concerning women wearing headscarves. It thus found that the impugned arbitrator's comments appeared to contain indirect, derogatory and unfortunate references to Muslims who hold a strict view of Islam and/or Islamic religious views.

Continuing its analysis, the ICC observed that the Monologue did not refer to Iran directly, but highlighted that Iran is a Muslim country in which it is a strict government-mandated requirement for women to wear headscarves, and that it promotes respect for religious requirements of which the impugned arbitrator expressed strong disapproval through the Monologue, in a public and forceful manner. In the ICC's view, although the impugned arbitrator had not referred directly to Iranian nationals, he had nevertheless forcefully singled out the religious requirements that Iran specifically upholds and with which the Applicant's female representatives clearly appear to comply in that several of them wear headscarves. The ICC then compared this case with the one that gave rise to the Federal Supreme Court's judgment of 22 December 2020 in case 4A_318/2020, and held that the impugned arbitrator had not limited himself to expressing his disagreement with headscarf-wearing requirements, but rather had used strong language and a harsh tone likely to give rise to justifiable doubts as to his impartiality. Finally, the ICC rejected the argument that the Monologue could not call into question the impugned arbitrator's impartiality on the basis that the Respondents are also mainly based in a country where Islam is the official religion (ICC decision no. 19-37). 

6.2. The Federal Supreme Court has consistently held that there is no direct recourse to it against decisions by private bodies, such as the ICC or the International Council of Arbitration for Sport (ICAS), on arbitrator challenges. However, such a decision may be reviewed in an action to set aside the award on the grounds that the arbitral tribunal was not properly constituted (ATF 138 III 270, recital 2.2.1; 118 II 359, recital 3b; judgments 4A_404/2021 of 24 January 2022, recital 5.1.2; 4A_146/2019 of 6 June 2019, recital 2.2 and 4A_644/2009 of 13 April 2010, recital 1).  

It is logical to conclude that the phrase “decisions by private bodies [...] on arbitrator challenges” includes both decisions accepting challenges and those dismissing them. This conclusion necessarily follows from the Federal Supreme Court's 22 June 2023 judgment (case 4A_100/2023). In that case, the Court heard a sports dispute in which the applicant challenged a final award of the Court of Arbitration for Sport on the basis of Article 190(2)(a) of the PILA, claiming that the ICAS had erred in accepting a challenge to the arbitrator it had nominated. In that case, the Court allowed the applicant to dispute the decision accepting the challenge (recital 6.7.1). 

6.3. The Applicant's arguments to the effect that, despite the clear wording of that judgment, the jurisprudence should not be applied because the challenge was upheld by a private-law body must be rejected.  

There is no merit to the Applicant's argument that, essentially, it is open to the Federal Supreme Court to refuse to review whether an arbitral tribunal was properly constituted when a private-law body accepts a challenge and a new arbitrator is appointed. The Swiss legal system cannot rely exclusively on decisions made by this type of body and fail to ensure that arbitral tribunals are properly constituted and that the fundamental guarantee that arbitrators be independent and impartial is respected. But an arbitral tribunal that does not include an independent and impartial arbitrator who was validly appointed but was subsequently wrongfully removed (where a challenge is upheld unjustifiably) is no less improperly constituted than one that includes a properly-appointed arbitrator who should have been removed had a challenge against them been correctly upheld (where a challenge is dismissed unjustifiably). 

The Applicant's argument that the approach adopted in judgment 4A_100/2023 does not apply in this case must also be rejected. The Applicant highlights that, in that case, the set-aside action before the Federal Supreme Court was brought by the party complaining that the award under review was made without the participation of the arbitrator it had originally appointed, because a challenge against the arbitrator was upheld unjustifiably before the award was rendered. It submits that this case is different in that the impugned arbitrator, appointed by the Respondents, was allowed to sit on the arbitral tribunal that rendered the award. Contrary to the Applicant's submission, in the judgment referred to above, the Federal Supreme Court did not intend to restrict the possibility of contesting private body decisions that accepted a challenge only to those cases where the challenge relates to an arbitrator selected by the party opposing the challenge and who could not take part in rendering the award under review. There is therefore no basis for drawing a distinction between this case and the case that gave rise to judgment 4A_100/2023, based on the arbitrator in question being able to sit as a member of the arbitral tribunal that rendered the award under review. 

Accordingly, it follows that a party who believes that a private body has erred in accepting or dismissing a challenge may, in principle, dispute such a decision by bringing an action before the Federal Supreme Court to set aside a challengeable award on the ground that the arbitral tribunal was improperly constituted (PILA, Art. 190(2)(a)). Of course, this excludes cases of conduct incompatible with the principles of good faith. 

6.4. In this case, it is not for the Federal Supreme Court to decide whether the ICC was right or wrong in accepting the challenge against the impugned arbitrator with regard to the remainder of the proceeding. This Court's role in this case is limited to determining whether the elements put forward by the Applicant in support of its request for review are sufficient to establish that a ground for challenge exists, within the meaning of Article 190a(1)(c) of the PILA, that warrants granting the Applicant's request for review of the interim award rendered on 5 May 2020. In carrying out this task, the Federal Supreme Court is not necessarily bound to adopt as its own all the legal considerations set out by the ICC. Indeed, it is not a contradiction to recognise that, even where, hypothetically, an arbitrator was correctly challenged during the arbitration, their participation in an interim award rendered before the ground for challenge against them arose is not sufficient to warrant setting aside that award.  

6.5. As regards the facts that are determinative to deciding a challenge against an arbitrator, when the Federal Supreme Court is called upon to review indirectly the decision made by the private body that has jurisdiction to decide on a such a challenge, in the context of a civil action to set aside an award under Art. 190(2)(a) of the PILA, it does so exclusively on the basis of the facts set out in the decision made by that body (judgments 4A_200/2023, cited above, recital 6.2; 4A_520/2021 of 4 March 2022, recital 5.3 and 4A_234/2010 of 29 October 2010, recital 2.2 not published in ATF 136 II 605). In this case, the Applicant's request for review is based on the same factual circumstances that it has already invoked before the ICC. Accordingly, the Federal Supreme Court will, in principle, rely on the facts set out in the ICC's decision to decide the outcome of the request for review and thus ascertain whether any ground for review under Art. 190a(1)(c) of the PILA is present in this case. However, if necessary, it will consider the additional factual explanations provided by the parties in their respective written submissions.  

7.  

The Applicant submits that the interim award dated 5 May 2020 should be set aside because the comments made by arbitrator Charles Poncet in the 31 August 2023 Monologue give rise to justifiable doubts as to his impartiality. It invokes Art. 190a(1)(c) of the PILA and Art. 6(1) of the European Convention on Human Rights (ECHR; RS 0.101). 

7.1.  

7.1.1. Like national court judges, arbitrators must offer sufficient guarantees as to their independence and impartiality. In determining whether an arbitrator offers such guarantees, reference must be made to the constitutional principles developed regarding state courts, while taking into account the specific features of arbitration – especially in the international arbitration field – when reviewing the circumstances of the case (ATF 142 III 521, recital 3.1.1; 136 III 605, recital 3.2.1 and the references cited; judgments 4A_166/2021 of 22 September 2021, recital 3.1, not published in ATF 147 III 586; 4A_318/2020 of 22 December 2020, recital 7.1, not published in ATF 147 III 65).  

The guarantee of an independent and impartial court, derived from Art. 6(1) of the ECHR and Art. 30(1) of the Federal Constitution of the Swiss Confederation (Cst.; RS 101), makes it possible to require that a judge be disqualified if their situation or conduct is such as to give rise to doubts as to their impartiality. It aims to prevent the judgment from being influenced by circumstances outside the case in favour of or against a party. It does not require disqualification only where actual bias on the part of the judge has been established, as internal disposition can hardly be proven; it is sufficient that the circumstances give the appearance of bias and raise an apprehension as to the judge acting in a biased manner. However, only circumstances that have been objectively established are to be considered; the purely subjective impressions of one of the parties to the proceeding are not determinative (ATF 142 III 521, recital 3.1.1; 140 III 221, recital 4.1 and the references cited; judgment 4A_318/2020, cited above, recital 7.1, not published in ATF 147 III 65). 

A party intending to challenge an arbitrator must raise the ground for challenge as soon as it becomes aware of it. This rule, established through court decisions, covers both the grounds for challenge of which the party bringing the challenge had actual knowledge and those which it could have known had it acted with due diligence (ATF 129 III 445, recital 4.2.2.1 and the references cited; see also PILA, Art. 182(4)). 

7.1.2. In Mutu and Pechstein v. Switzerland (judgment of 2 October 2018), the European Court of Human Rights was called upon to rule on the alleged lack of independence and impartiality of two CAS arbitrators. In this context, it stated that impartiality normally denotes the absence of prejudice or bias (§ 141). It also recalled that, according to its settled case law, impartiality must be determined not only according to a subjective perspective, based on the personal conviction and conduct of the person called upon to rule in a given case, but also according to an objective approach, which consists in asking whether the court offered safeguards sufficient to rule out any justifiable doubt about the judge’s impartiality, independently of the judge’s personal conduct (§ 141).  

7.1.3. To determine whether members of an arbitral tribunal are independent, the parties may also refer to the guidelines on conflicts of interest in international arbitration issued by the International Bar Association (IBA Guidelines on Conflicts of Interest in International Arbitration, approved in 2004 and revised a first time in October 2014 and a second time in February 2024 ["IBA Guidelines"]). These guidelines, which can be compared to ethical rules used to interpret and clarify professional rules (ATF 140 III 6, recital 3.1; 136 III 296, recital 2.1), are of course not legally binding, and the circumstances of the specific case are always determinative. However, they are a useful reference tool that can contribute to harmonising and unifying the standards applied in international arbitration for resolving conflicts of interest, which is likely to influence the practices of arbitral institutions and courts (ATF 142 III 521, recital 3.1.2).  

The IBA guidelines lay down general principles. They also include an enumeration of specific circumstances, in the form of the following non-exhaustive lists: a red list, divided into two parts (situations in which there are justifiable doubts as to independence and impartiality, the most serious of which the parties cannot waive); an orange list (situations falling somewhere in the middle, which must be disclosed but do not necessarily warrant disqualification); a green list (specific situations which do not objectively give rise to conflicts of interest and which arbitrators are not required to disclose). It goes without saying that, even though such lists exist, the circumstances of each specific case will always be determinative in deciding whether there is a conflict of interest (ATF 142 III 521, recital 3.2.1 and the references cited; judgment 4A_100/2023, cited above, recital 6.1.4). 

According to one of the IBA Guidelines principles, an arbitrator must decline an appointment or refuse to continue to act as arbitrator where facts or circumstances exist, or have arisen since the appointment, which, from the point of view of a reasonable third person having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to the arbitrator's impartiality or independence (para. 2(b) of the IBA Guidelines). Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching the arbitrator’s decision (para. 2(c) of the IBA Guidelines). 

7.1.4. In judgment 4A_318/2020, published in part in ATF 147 III 65, which related to a doping case involving a Chinese national, the Federal Supreme Court was called upon to rule on a challenge to one of the three arbitrators who had sat on the panel that rendered the final award. In that case, the arbitrator in question was advocating for animal rights. In various tweets posted before the award under review was rendered, he criticised in extremely strong terms a Chinese practice of slaughtering dogs for large-scale consumption at a food festival in Yulin. He likened this practice to torture, and those who carried it out to executioners. Having reviewed the situation, the Federal Supreme Court found that it warranted allowing the request for review and disqualifying the arbitrator in question. In particular, it found that the words used by the arbitrator in question were unacceptable, in particular those referring to the skin colour of certain Chinese individuals, especially given that the remarks in question had been made by the president of an arbitral tribunal called upon to rule on an appeal brought by a Chinese national, even though the case had not yet been decided.  

7.2. Under Art. 190a(1)(c) of the PILA, a party may request a review of an award if, despite the parties having exercised due diligence, a ground for challenge within the meaning of Art. 180(1)(c) of the PILA only came to light after conclusion of the arbitration proceedings, and no other legal remedy is available.  

The parties' positions differ as to whether the ground for challenge, within the meaning of Art. 180(1)(c) of the PILA, must have existed at the time the award under review was rendered to provide a basis for a request for review of the award under Art. 190a(1)(c) of the PILA. 

7.2.1. The thrust of the Applicant's argument is that there is no such requirement in the Act and that the purpose underlying Art. 190a(a)(1)(c) of the PILA does not require specific proof that the ground for challenge existed at the time the award under review was rendered. In its submission, the only relevant factor is whether the circumstances invoked in the review proceeding give rise to justifiable doubts as to the arbitrator's impartiality, regardless of when the impugned arbitrator's conduct took place or was established.  

The Applicant then refers to ATF 142 III 521, which counterposes the principle of legal certainty against the need to ensure compliance with the guarantee of an independent and impartial tribunal, and explains that the Respondents’ reliance on the first of the two prongs is inapposite, since the deadline for requesting a review of an award is ten years from when the award comes into force. 

7.2.2. The Respondents submit that the phrase "conclusion of the arbitration proceedings" in Art. 190a(1)(c) of the PILA shows that the federal legislature had in mind the most common request for review scenario, which is against a final award. The Respondents conclude from this that, if such a request is made against a partial or interim award, it follows that the ground for challenge must have existed at the time the award for which review is sought was rendered. In their submission, the legislature clearly did not intend to allow review of an award based on the discovery of a ground for challenge that only came into existence after the award was rendered. 

Similarly, with regard to the review provided for in Art. 190a(1)(a) of the PILA, the relevant ground involves subsequently becoming aware of significant facts or uncovering decisive evidence that already existed at the time the award under review was rendered. The Respondents state that the purpose of Art. 190a(1)(c) of the PILA is to ensure that an award does not stand if it later emerges that it was rendered by an arbitral tribunal that did not meet the independence and impartiality requirements. Thus, they argue that, consistent with this legal provision’s goal, the ground for challenge must have existed at the time the award was rendered. In their submission, the same conclusion also follows from the phrase "due diligence" used in the same provision. Indeed, if it were not necessary for the ground for challenge to have existed at the time the interim, partial or final award under review was rendered, the due diligence requirement would be superfluous, since a party cannot discover a ground for challenge that does not exist, even by being extremely diligent.  

According to the Respondents, this leads to the conclusion that, in a review under Art. 190a(a)(1)(c) of the PILA, a ground for challenge must be shown to have existed as of the date the impugned award was rendered. In other words, for a request for review to be granted, the subsequent circumstances raised must be such as to call into question the impartiality and independence of the impugned arbitrator at the time the award under review was rendered. 

7.3. To resolve this question of principle, we must interpret Art. 190a(a)(1)(c) of the PILA.  

A law must first be interpreted based on its wording (literal interpretation). If the text can bear several interpretations, or if there are serious reasons to believe that it does not reflect the legislature's intent, its true meaning must be ascertained, having regard in particular to the preparatory works (historical interpretation), the goal of the rule, its spirit, and the values on which it is based, and especially the interest protected (teleological interpretation), or its relationship with other legal provisions (systematic interpretation; (ATF 149 III 98, recital 5.2 and references cited; 141 III 444, recital 2.1). When interpreting a law, the Federal Supreme Court adopts a pragmatic approach by considering these different interpretations, without giving any of them precedence over the others (ATF 149 III 98, recital 5.2 and references cited; 141 III 444, recital 2.1). 

7.3.1. As a preliminary point, we note that the phrase "after conclusion of the arbitration proceedings" in Art. 190a(1)(c) of the PILA suggests that the federal legislature apparently had in mind only the most common request for review scenario, which is against a final award, and that it did not consider the scenario of a request for review of an interim award based on a ground for challenge discovered after the award was made but while the arbitration is still ongoing. However, there is nothing to suggest that a party could not make a request for review under Art. 190a(a)(1)(c) of the PILA in such a case.  

Art. 190a(a)(1)(c) of the PILA does not expressly state that the ground for challenge must have existed at the time the award under review was rendered. However, this does not mean that the Respondents’ proposed interpretation should be rejected. On the contrary, it is worth highlighting that the expression "despite [the parties] exercising due diligence", used in this provision, appears instead to support the Respondents’ argument. Indeed, if it were not necessary for the ground for challenge to have existed at the time the award under review was rendered, the due diligence requirement would be superfluous, given that a party cannot discover a ground for challenge that does not exist even by being extremely diligent. 

7.3.2. The preparatory work provides no assistance in resolving this issue. In its Dispatch of 24 October 2018 on the amendment of the Federal Act on Private International Law (Chapter 12: International Arbitration), the Federal Council states only that "the review provisions will apply if a ground for challenge is only discovered after a proceeding has been concluded", without providing any further details on this point (FF 2018, p. 7184).  

7.3.3. From a general perspective, it should be noted that art. 190a(1) of the PILA lists three grounds for review. The first two scenarios involve cases where the factual circumstances giving rise to the request for review arose before the award under review was rendered. Facts and evidence that post-date the award are expressly excluded from the scope of Art. 190a(1)(a) of the PILA. As for the scenario referred to in Art. 190a(1)(b) of the PILA, it presupposes that the award was influenced by a felony or criminal misdemeanour to the detriment of the party requesting a review. It necessarily follows that the criminally punishable acts must have taken place before the award under review was rendered. Thus, it appears that two of the grounds for review provided for in the Act clearly relate to factual circumstances that arose before the decision was rendered.

7.3.4. In light of the purpose of Art. 190a(1)(c) of the PILA, it appears that the intended goal is to prevent an award from standing in circumstances where it becomes known at a later date, and for justifiable reasons, that the award was made by an arbitral tribunal that did not meet independence and impartiality requirements. It is therefore consistent with the purpose of this legal provision that the ground for challenge must have already existed at the time the award under review was rendered. On the other hand, it is not clear why an award rendered by an arbitral tribunal that satisfied the independence and impartiality guarantees should be set aside on the grounds that one of the arbitrators subsequently breached their duty to be independent and impartial.  

In the many cases in which, as here, the arbitration results in interim awards before the final award is rendered, it is quite conceivable that a ground for challenge may only arise after one of these interim awards has been rendered. Assuming, for example, that an arbitrator who has participated in rendering an interim award becomes romantically involved with a female partner in the law firm of one of the parties to the dispute a few years later, and that he has just met this female partner who is involved in handling the relevant arbitration file, the arbitrator will likely have to resign on his own initiative, or risk being challenged by one of the parties. Whether the arbitrator resigns on his own initiative or is successfully challenged, he will undoubtedly be barred from sitting on the arbitral tribunal for the remainder of the arbitration. But it is difficult to conceive of such a circumstance providing grounds for a request for review of the interim award made several years earlier by the arbitral tribunal on which that arbitrator sat. 

Moreover, the interpretation to the effect that the ground for challenge must exist when the impugned award is rendered to warrant setting aside the award is confirmed by General Standard (1) of the IBA Guidelines, which provides that an arbitrator’s obligation to be impartial and independent ends when the final award is rendered. On this point, the Explanation to this standard specifies that an arbitrator must remain impartial and independent of the parties during the entire course of the arbitration proceeding, and further provides: 

“The question has arisen as to whether this obligation should extend to the period during which the award may be challenged before the relevant courts. The decision taken is that this obligation should not extend in this manner, unless the final award may be referred back to the original Arbitral Tribunal under the relevant applicable law or relevant institutional rules. Thus, the arbitrator’s obligation in this regard ends when the Arbitral Tribunal has rendered the final award [...]” (IBA Guidelines, 2014 version)

In other words, under this private body's rules, an arbitrator's impartiality and independence obligation does not, in principle, survive the award being rendered. It necessarily follows from this, as regards the rule set out in Art. 190a(1)(c) of the PILA, that in order to warrant a review of a final award on this basis, the ground for challenge must have existed at the time the award was rendered. The same should be true, by analogy, when reviewing a partial or interim award, except that, in such a case, an arbitrator's impartiality and independence obligation continues to apply until the final award is rendered. Any breach post-dating the partial or interim award may warrant challenging the arbitrator in question from sitting for the remainder of the arbitration, but previously rendered awards will not be subject to review. 

This interpretation is, moreover, in line, at a more general level, with the aim pursued by Swiss legislation on international arbitration, which is to limit as far as possible the avenues for disputes in this area (ATF 138 III 270, recital 2.2.1). It should also be noted that a review is an extraordinary legal remedy subject to even stricter rules than an action (ATF 148 III 436, recital 4.3.3). Because of this, the relevant legal provisions should be interpreted restrictively. Such a restrictive interpretation is all the more appropriate when, as here, the request for review was brought several years after the award in question was rendered. This is because, to guarantee legal certainty, reviewing an award must remain the exception to the otherwise final nature of an arbitral decision. In this case, it should be noted that the Applicant's proposed interpretation of Art. 190a(a)(1)(c) of the PILA – according to which the ground for challenge alleged in a request for review may arise after the award under review was rendered – would undermine legal certainty and open the door to various stalling tactics by encouraging ever more frequent requests for review, even if they were manifestly devoid of merit. Indeed, the right to request a review based on having discovered a ground for challenge only lapses ten years after the award becomes legally binding (PILA, Art. 190a(2)). 

7.3.5. In the light of the above, the Federal Supreme Court is of the view, having considered the matter, that a request for review under Art. 190a(a)(1)(c) of the PILA may only be granted if the ground for challenge relied on already existed at the time the final, partial or interim award under review was rendered.  

7.4. In this case, it is not disputed, nor could it be, that the Applicant's challenge request is based on arbitrator Charles Poncet's comments in the Monologue broadcast on 31 August 2023, i.e. more than three years after the award under review was rendered (5 May 2020). We must therefore assess whether this element is sufficient to establish that the ground for challenge already existed on the date on which the award was rendered.  

7.4.1. The Applicant submits that where an arbitrator is biased against a party or community, the related ground for review must be considered to have existed at the time the award under review was rendered, regardless of when the arbitrator voiced such prejudice. In its submission, to hold otherwise and to require proof that such prejudice existed at the time the impugned award was rendered would make the possibility of review illusory in cases where, as in this one, the arbitrator expressed their prejudice after the award had been rendered, given that such a circumstance is part of the arbitrator's internal disposition. According to the Applicant, the Court should find that the prejudice stemming from the 31 August 2023 Monologue existed before the 5 May 2020 award and, at the very least, that there is a justifiable doubt that it already existed at that time, which would be sufficient to give rise to an appearance of bias and to justify setting aside the award. It argues that such a conclusion is reinforced by the unusual fact that all the arbitrators who rendered the award in question were removed (challenges and a resignation). It would therefore be inappropriate for the newly constituted arbitral tribunal, which will inevitably have to repeat procedural steps, to be bound by an award issued by an arbitral tribunal that is neither impartial nor independent.  

7.4.2. The Respondents respond that the only element the Applicant relies on in support of its request for review post-dates the award under review by a considerable margin and therefore cannot be a ground for review. They also note that there were no other circumstances before the award was rendered or at the time it was rendered such as to give rise to doubts as to the impugned arbitrator's impartiality at that time. In their submission, adopting the Applicant's position would mean, in practice, that an arbitral award could be set aside because of any comment made or article published, including on matters not directly related to the parties or the substance of the dispute, within ten years of the award becoming legally binding. This would compel the parties to keep constant watch on the arbitrators throughout this period in order to identify any verbal or written misconduct on their part and thus be able to call into question an award that is final or has already been enforced for a long time. The Respondents argue that this would undermine legal certainty at the most basic level. Arbitrators' freedom of expression would also be undermined, as a "duty of to exercise restraint" of sorts would be imposed on them for a decade as a result of this scrutiny. It would also prejudice Switzerland's standing as an arbitral centre.  

In any event, the Respondents submit that the arbitrator's comments in the Monologue do not give rise to any justifiable doubts as to his impartiality at the time the award under review was rendered. As for the evidentiary issue, they argue that, where the circumstance invoked as a ground for challenge arose after that time, it follows that the party seeking review must show that the ground for challenge already existed at the time the award was rendered. In other words, that this circumstance reveals the existence of long-standing prejudice in the mind of the impugned arbitrator. Yet, in the Respondents’ submission, the Applicant did not even attempt to establish this. In particular, according to the Respondents, the Applicant has failed to point to any element, whether pre-dating or contemporaneous with the award under review being rendered, which would establish that there was, as of that date, any appearance of bias on the part of the impugned arbitrator with regard to Muslims or wearing headscarves, and even less so with regard to Iranians in general or the Applicant in particular. They also state that the Applicant fails to recognise that the statements at issue were prompted by specific events that occurred three years after the award, namely the criticism and threats made by certain individuals in Swiss public swimming pools in the summer of 2023 against women who attended these facilities in what those individuals regarded as indecent attire. According to the Respondents, in his response of 10 October 2023 to the request for challenge brought before the ICC, the impugned arbitrator established that he had championed the cause of Muslims on several occasions, both professionally and in a personal capacity, and that he had even been criticised for his support of the Muslim community. The Respondents argue that, despite being relatively outdated, these various positions taken by the impugned arbitrator reveal his profound convictions and demonstrate that he is completely unprejudiced towards Muslims, including those with a strict view of Islam. According to the Respondents, it is clear in these circumstances that a reasonable third party with knowledge of all the relevant facts would have no justifiable doubts as to the impugned arbitrator's impartiality as of the date of the award under review. Lastly, the Respondents take pains to deny, both in fact and in law, that there is any significance to other circumstances relied on by the Applicant, whether they relate to the participation of women wearing headscarves in the Applicant's name or on its behalf at the arbitral hearing held in February 2020 or to procedural decisions by the arbitral tribunal that are alleged to be incorrect or even biased. 

7.4.3. In its reply, the Applicant confirms its argument, by expanding upon it, as to the burden of proving the existence of the ground for challenge at the time the impugned award was rendered. First, it revisits the question of principle of whether the ground for challenge must already exist at the time the award is rendered, which it answers in the negative. It cites as an example a judgment of 10 January 2023 (Exhibit 57) in which the Paris Court of Appeal set aside the award rendered in an ICC case (no. ....) on the basis of the publication, several months after the award was rendered, by the arbitrator in question of a text intended as a eulogy of a renowned legal scholar who had represented one of the parties to the arbitration proceedings before his sudden death. It observes that setting aside the award was warranted, according to the Paris Court of Appeal, because the arbitrator's eulogy was a circumstance that could "lead the parties to believe that the president of the arbitral tribunal might not be able to decide freely and thus to raise a reasonable doubt in [the applicant’s] mind as to the independence and impartiality of that arbitrator” (para. 70). As regards the impugned arbitrator's comments in this case, the Applicant submits that the date on which prejudice is expressed in public clearly does not reflect the date on which the prejudice is formed or exists in the arbitrator's mind.  

The Applicant also disputes that the principle of legal certainty can be invoked against it when all it is doing is objecting to the failure to comply with the fundamental guarantees of a fair hearing. As to the purported threat to the arbitrator's freedom of expression posed by imposing a “duty to exercise restraint” for ten years after rendering the award under review, the Applicant seeks to rebut this argument by referring to judgment 4A_318/2020, in which the Federal Supreme Court set certain limits on arbitrators' freedom of expression during the arbitral proceeding, even when they are not acting in their capacity as arbitrators. In any event, it submits that the circumstances relied on were such as to give rise to doubt as to the impugned arbitrator's impartiality and to create an appearance of bias dating back to the time when the award under review was rendered. 

7.4.4. In their rejoinder, the Respondents refute the arguments put forward by their opponent. They stress that the circumstances which gave rise to the Paris Court of Appeal's judgment, cited by the Applicant, are significantly different from those in this case. In their submission, the Applicant's reference to judgment 4A_318/2020 is irrelevant since the remarks made by the impugned arbitrator in that case had been made before the award under review was rendered.

7.5. Having summarised the parties' positions on the matter in issue, we now turn to reviewing its merits.  

From the outset, it is worth recalling the basic nature of requests for review. It is an extraordinary legal remedy by which a party attempts to overturn the formal res judicata effect that attaches to a definitive judgment. A final award also has such an effect. An interim award is binding on the arbitral tribunal that rendered it and is therefore comparable in this regard to a final award that has come into force (ATF 128 III 191, recital 4a; 122 III 492, recital 1b/bb and references cited; judgment 4A_36/2020 of 23 August 2021, recital 6.3.2). Given its exceptional nature, review is a weapon to be wielded with caution, as using it in a widespread manner would jeopardise legal certainty. It is thus appropriate to consider in some detail the statutory requirements for its application, in this case Art. 190a(a)(1) (c) of the PILA. (see in the same vein: BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 4th ed. 2021, no. 1966). Pursuant to the ordinary rule as to the burden of proof, the party seeking to disrupt the status quo, by seeking to set aside an award that has entered into force by bringing a request for review under Art. 190a(a)(1)(c) of the PILA, bears the burden of establishing that circumstances exist that are decisive of the statutory provision’s application in the case concerning that party and, if it fails to do so, it bears the consequences of such failure. 

We agree that a circumstance arising after the award under review has been rendered, even if it is proven, cannot in principle be sufficient, in and of itself, to warrant reviewing the award within the meaning of Art. 190a(1)(c) of the PILA. In this respect, it is irrelevant whether the award is final, partial or interim. In this case, there is no reason to grant the request for review since the award was rendered by a properly constituted arbitral tribunal. The fact that one of its members was subsequently the subject of a successful challenge based on a circumstance that occurred after the award was rendered does not change this. It is indeed entirely conceivable that an arbitrator could cease to be independent and impartial during the course of the arbitration, thus compelling the arbitrator to resign from the arbitral tribunal. This would not, however, call into question the validity of the arbitrator's previous participation in the arbitration. 

The Paris Court of Appeal's judgment of 10 January 2023, cited by the Applicant, does not help its argument. In that case, the French court simply observed that a circumstance subsequent to rendering the award, i.e. the president of the arbitral tribunal's posthumous eulogy of the deceased counsel to a party in the arbitration, showed that the two of them had been close friends for many years, well before the impugned award was rendered, which could give rise to an appearance of bias. Thus, this decision does not by any stretch require departing from the rule that the party seeking review of an award under Art. 190a(a)(1)(c) of the PILA bears the burden of showing that the ground for challenge relied on already existed at the time the award under review was rendered. 

Contrary to the Applicant's submission, there cannot be any question of adopting a different approach where the circumstances supporting a request for review relate to comments, which are said to show prejudice on the part of an impugned arbitrator, that are made by the arbitrator several years after the award under review was rendered. In this regard, the danger inherent in the Applicant's argument bears highlighting. It submits that an arbitrator's prejudice against a party or a community, which can be inferred from statements the arbitrator made several years after the award under review was rendered, should be considered to have already existed at that time, at least where there are justifiable doubts on the matter. Such danger stems from the fact that this argument applies an irrebuttable presumption of sorts to a circumstance that clearly post-dates the award under review (statements made by the impugned arbitrator more than three years after the award was rendered): that another circumstance (the objectionable prejudice attributed to the arbitrator) existed at the time the award was rendered. This approach would be tantamount to reversing the burden of proof and shifting it to the respondent in the review proceeding. Moreover, justifiable doubts as to pre-existing prejudice inferred solely from statements made after the award under review are not enough. Such an approach would clearly lead to a slippery slope. Merely asking whether a reasonable third party, having heard the statements at issue, would consider it likely that the impugned arbitrator's decision-making three years prior had been influenced by factors other than the merits of the case would leave too much room for subjectivity and casting aspersions on motives, and thus leave the door open to all manner of misuse. It is also important to recognise that an arbitrator's opinions, or prejudice, are not set in stone. An arbitrator's views are likely to evolve over time. Consequently, in this case, we cannot agree that the arbitrator's statements in the Monologue, made more than three years after the award under review was rendered, are in and of themselves sufficient to show prejudice or an appearance of bias on the arbitrator's part that was already present when the award was rendered, absent any other corroborating circumstance. 

Accordingly, applying the ordinary rule as to the burden of proof, as we must, we conclude that the Applicant has not succeeded in showing that the impugned arbitrator harboured any long-standing prejudice – prejudice that already existed at the time the award was rendered – against it or against Muslims more generally, including Iranians. We also fail to see how the fact that some women attended the February 2020 arbitral hearing wearing headscarves – which the Respondents dispute – helps the Applicant’s argument in any way. The same is true regarding the fact that some male experts who are in favour of women wearing headscarves attended that hearing. Nor is the Applicant’s argument assisted by allegedly incorrect, or even biased, procedural decisions, nor by the resignation of another arbitrator and the successful challenge to the president of the arbitral tribunal, all of which took place after the impugned award was rendered. On the contrary, the Respondents submitted the impugned arbitrator's 10 October 2023 response to the challenge brought against him, as well as its schedules. It appears from these documents that, both in his professional activities and in a personal capacity, this arbitrator had publicly taken sides in favour of persons of the Muslim faith, even going so far as to defend the freedom of speech of persons professing radical Islamic views. From an evidentiary standpoint, it should be noted that although these exhibits date back to the early 2000s, they appear to be the only evidence on the record in this regard. Thus, as the Applicant has not adduced any evidence to the contrary, it has not been shown that the impugned arbitrator disavowed his support for Muslims' freedom of speech or that he was potentially prejudiced against the Muslim community, Iranians or the Applicant when the award under review was rendered. It thus follows that the Applicant has not shown that there were grounds for challenge at the time the award in question was rendered. 

8.  

Given the above, the request for review must be dismissed. The Applicant, which is the unsuccessful party, shall therefore bear the court costs for this proceeding (SFSCA, Art. 66(1)) and shall pay party costs to the Respondents as joint and several creditors (SFSCA, Art. 68(1), (2) and (4)). 

For these reasons, the Federal Supreme Court orders as follows:  

1.  

The request for review is dismissed. 

2.  

The Applicant shall pay the court costs, which are fixed at CHF 200,000. 

3.  

The Applicant shall pay CHF 250,000 in party costs to the Respondents, as joint and several creditors. 

4.  

This judgment shall be sent to the parties' representatives and to the President of the Arbitral Tribunal that rendered the impugned award. 

Lausanne, 11 June 2024 

On behalf of the 1st Civil Law Court 

of the Swiss Federal Supreme Court 

The Presiding Judge: Jametti 

The Clerk: O. Carruzzo