At its session of 17 December 2020, the International Court of Arbitration of the International Chamber of Commerce ("Court") decided, inter alia:
1. that the challenge filed against all the members of the arbitral tribunal is admissible (Article 14(3));
2. to reject the challenge on the merits (Article 14(3));
3. to communicate the reasons for the decision on the challenge submitted by Claimants (Article 11(4)).
Following the Secretariat's correspondence of 17 December 2020, the Court's reasons on the challenge are communicated herein.
The Court examined all submissions filed by the parties and the members of the arbitral tribunal regarding Claimants' challenge dated 28 October 2020, including, inter alia, (i) comments filed by each member of the arbitral tribunal on 12 November 2020, (ii) Claimants' submission dated 19 November 2020, (iii) additional comments filed by each member of the arbitral tribunal on 24 November 2020, (iv) Respondent's submission dated 1 December 2020, (v) Claimants' letter dated 14 December 2020, (vi) Respondent's letter dated 15 December 2020, and (vii) final comments filed by each members of the arbitral tribunal on 16 December 2020.
Pursuant to Article 14 of the Rules and the parties' express request for the Court to communicate the reasons for its decision on Claimants' challenge, the Court has agreed to communicate the reasons for its decision.
Claimants allege that each of the arbitrators improperly failed to timely make certain disclosures of professional relationships with, inter alia, one of the other arbitrators in this case, counsel in this case and/or an arbitrator in a different related arbitration. Claimants take the view that for each of the relationships they have identified upon their investigation after the Second Partial Award was rendered on 26 September 2020, or that has been disclosed by the arbitrators pursuant to Claimants' letter (in related ICC Case 22466/ASM/JPA) of 15 October 2020, a disclosure should have been made but was not made timely. In any event Claimants allege the relevant professional relationships at issue in themselves justify the challenge against each of the arbitrators. Claimants moreover are of the view that the non-disclosure of the identified professional relationships in totality raises "issues of principle of fundamental importance for ICC Arbitration" (Cl. Letter of 14 December 2020). Claimants call into question the arbitrators' "practices" and urge the Court to consider whether these can still be "tolerated in the 21 st century" (idem).
Each of the challenges against each of the arbitrators shall be addressed hereinafter on its own merits under Article 14 of the Rules.
To determine whether the challenges relating to the arbitrators' failures to disclose should be granted, a two pronged test is in order: (i) whether the facts at issue should have been disclosed by the relevant arbitrator (Article 11 of the Rules) and, if so, (ii) whether the facts that the arbitrator failed to disclose are of such a nature that the challenge is well founded. A failure to disclose circumstances that an arbitrator should have disclosed does not per se lead to the conclusion the challenge should be granted. An objective test is applied in the context of Article 14 of the ICC Rules.
Pierre-Yves Gunter, Claus von Wobeser, Robert Gaitskell