ARBITRATOR DISCLOSURE – LOVE, WARTS AND ALL
Arbitration is an alternative form of dispute resolution and requires opting out of a state court system which ordinarily would exercise jurisdiction over a particular dispute. Instead of a judge deciding the dispute, supervised and paid for by the state, the parties agree that an independent and impartial tribunal will do so instead.
Together with international enforcement, confidentiality and flexibility of procedure, the ability of parties to select the members of the arbitration tribunal is one of the key benefits of arbitration. This allows the preferences of the parties in respect of the nationality, culture and expertise of the arbitrator to be considered.
In recent years, the spotlight has been on the independence and impartiality of the arbitrators, essential to ensure the integrity of arbitral proceedings.
At the start of 2023, in Port Autonome de Douala v Douala International Terminal, the Paris court of appeal set aside an award because the tribunal was not properly constituted – due to the undisclosed close relationship between Thomas Clay, the president of the arbitral tribunal, and the late Emmanuel Gaillard, the claimant’s counsel.
The closeness of their relationship only emerged from Mr Clay’s written eulogy for Mr Gaillard that had been posted online in which Mr Clay noted, among other things, that he and Mr Gaillard had developed a “more personal” friendship and that he consulted Mr Gaillard “before making any important decision”. While the court did not consider Mr Clay to be biased, his making of a public declaration that he frequently consulted with the lead counsel of one of the parties demonstrated an unacceptable potential for partiality.
The requirement for impartiality is embedded in most legal systems. Section 1(a) of the UK Arbitration Act 1996 spells out that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”.
Oct-Dec 2024 issue
Adrian Cole