Reference: French Supreme Court, 19 June 2024, no. 23-10.972, (confirmation of Paris Court of Appeal, Pole 5, Ch. 16, 10 January 2023, no. 20/18330)
On 19 June 2024, the Court of Cassation issued a judgement on the independence and impartiality of arbitrators in an ICC arbitration relating to a contract between Douala International Terminal (“DIT”) and the Port Autonome de Douala (“PAD”) for the operation of a terminal in the port of Douala (Cameroon).
The arbitral tribunal, composed of three arbitrators, rendered a partial award against PAD. PAD first filed an application to set aside the partial award on 14 December 2020, and then applied to the ICC Secretariat to recuse the chairman of the arbitral tribunal based on the terms of the eulogy delivered by the arbitrator to a well-known practitioner, the counsel of DIT, which was published shortly after his death. In that eulogy, the chairman of the tribunal stated, inter alia, that he “admired and loved” the late practitioner and consulted him “before making any important decision”, and that the deceased “opened up” to him, “which he rarely did”. The president of the tribunal also added, in connection with the arbitration proceedings in question, that he was “delighted to hear once again his formidable razor-sharp pleadings, in which precision and sublimity of vision were far more seductive than any tricks”. These personal ties had not been disclosed beforehand.
On 10 January 2023, the Paris Court of Appeal annulled the partial award on the basis of Article 1520 2° of the Code of Civil Procedure, ruling that the tribunal had been improperly constituted. The Paris Court of Appeal considered that the terms of the eulogy revealed a link between, on the one hand, the existence of “close” personal ties within the meaning of the ICC Recommendations and Rules between the deceased and the arbitrator and, on the other hand, the arbitration proceedings over which the latter presided, such as to raise reasonable doubts in the minds of the parties as to the arbitrator’s independence and impartiality.
In its judgement dated 19 June 2024, the Court of Cassation confirmed the analysis of the Court of Appeal. The Court of Cassation recalled that mere professional and academic ties do not imply the existence of “close” professional or personal relationships and need not be declared. However, the Court of Cassation held that the tone and certain formulas of the text published by the arbitrator went over and above the emphasis and exaggeration inherent in any eulogy and suggested “the existence of a friendly relationship whose intensity went beyond the realm of academic sociability”. Moreover, by establishing a connection with the ongoing arbitration, the text was such as to suggest that the chairman of the arbitral tribunal might not be free to exercise his own judgments and thus raise doubts, based on an objective fact, in PAD’s mind as to his independence and impartiality because of his relationship with DIT’s counsel. As a result, these ties should have been disclosed in order to allow the parties to exercise their right of challenge.
