Arbitrator Bias

The French Court of Cassation has upheld a decision to annul an ICC award because of a eulogy that the tribunal president Thomas Clay wrote for the counsel to one of the parties, the late Emmanuel Gaillard.?

In a judgment earlier this week, the court rejected an appeal over the annulment of the award.?

The Paris Court of Appeal set aside the award after finding that the eulogy established there were “close personal ties” that Clay should have disclosed. ?

In its latest ruling, the Court of Cassation agreed that certain passages in the eulogy should be interpreted solely as a tribute to a respected figure in arbitration, such as Clay’s statement that “I admired and loved him”.?

However, the Court of Cassation also agreed that certain other remarks including that Clay had consulted Gaillard “before making any important choices” – revealed the existence of a relationship that went beyond “academic sociability”.?

It also upheld the appeal court's finding that the eulogy established a connection with the arbitration, as Clay said he had been looking forward to hearing Gaillard’s “formidable, razor-sharp pleadings again, where precision and insight were far more seductive than any rhetorical flourish”.?

The Court of Cassation held that these findings, based on the “objective fact” established by the eulogy, were sufficient to justify the conclusion that the circumstances were likely to give rise to reasonable doubt over Clay’s independence and impartiality in the proceeding.?

As I have previously said this is a sound decision https://www.dhirubhai.net/pulse/apparent-bias-paris-cour-dappel-gets-right-peter-ashford/?trackingId=g8IqAT87RNmjY29B7iTtPQ%3D%3D and the sort of thing we need to keep arbitration legitimate.

The decision follows another recent decision from the Paris Court of Appeal, which overturned another ICC award that had dismissed a private equity group’s US$15 billion claim against Telecom Italia, after it found there were reasonable doubts over the independence of tribunal chair.