French Court of Cassation, appeal no. 23-10.972, decision dated 19 June 2024
The French Court of Cassation upheld the Paris Court of Appeal's decision setting aside an arbitral award rendered by a three-arbitrator tribunal based on doubts as to the impartiality of the presiding arbitrator (Thomas Clay) arising from a eulogy he gave of the lead counsel for one of the parties (Prof. Emmanuel Gaillard), which revealed that they were close personal friends and that the presiding arbitrator consulted the counsel before making any important decision.
Swiss Federal Supreme Court, decisions 4A_288/2023 and 4A_572/2023 dated 11 June 2024
The Swiss Federal Supreme Court dismissed two requests for review of an interim award rendered by a three-arbitrator tribunal in circumstances in which challenges against two of the tribunal members were later accepted – tribunal president Laurent Aynès because of undisclosed ties between his law firm and a member of Crescent's counsel team, and co-arbitrator Charles Poncet because of certain comments he made on Swiss television.
The Court held that the grounds for challenge post-dated the interim award, and that those that pre-dated the award (relating to ties between Laurent Aynès' firm and a member of Crescent's counsel team, were insufficient to warrant review of the jurisdictional award.
Original (Tribunal fédéral suisse, regarding Laurent Aynès) • English Translation
Original (Tribunal fédéral suisse, regarding Charles Poncet) • English Translation
Paris Court of Appeal, RG no. 21/08610, decision dated 2 May 2024
An arbitral award rendered by a three-arbitrator tribunal was set aside because of reasonable doubts as to the independence of the presiding arbitrator (Carole Malinvaud), whose firm (Gide) did work for a major shareholder of one of the parties.
Paris Court of Appeal, RG no. 20/18330, decision dated 10 January 2023
An arbitral award rendered by a three-arbitrator tribunal was set aside because of doubts as to the impartiality of the presiding arbitrator (Thomas Clay) arising from a eulogy he gave of the lead counsel for one of the parties (Prof. Emmanuel Gaillard), which revealed that they were close personal friends and that the presiding arbitrator consulted the counsel before making any important decision.
Paris Court of Appeal, RG no. 16/09386, decision dated 27 March 2018
An arbitral award rendered by a three-arbitrator tribunal was set aside because of a reasonable doubt as to the impartiality of one arbitrator, arising from that arbitrator's firm having acted for an affiliate of a party during the arbitration. This was not disclosed. The arbitrator had a continuing duty to disclose, which was breached here. It was irrelevant that the doubt existed only with respect to one of the party-appointed arbitrators, since each member of the tribunal was equally likely to influence the others during the hearing and deliberations.
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