The French Court of Cassation annulled an award granted in an arbitration at the International Chamber of Commerce (ICC) in 2020 on Friday. The case before the French court arose when the presiding arbitrator of a three-person ICC tribunal, Thomas Clay, wrote a eulogy for lawyer Emmanuel Gaillard, counsel of a party before the body.

Arbitration is the process whereby two parties with a commercial relationship refer a dispute to a tribunal which makes a binding decision on the dispute. The independence and impartiality of arbitrators are required as a general rule, and it is expressly provided in different laws that govern arbitration. In this case, the arbitration took place under French law.

The parties involved were “the company DIT” and “the PAD company.” The former was tasked to “manage, operate and develop the container handling activity” of the latter’s port beginning in 2004. A dispute between the two parties arose in 2019, after which the company DIT initiated arbitration proceedings before the ICC. The arbitration resulted in an award in favour of the company DIT in November 2020. Throughout the entire process, Clay did not disclose the existence of any relationship between himself and Gaillard, a lawyer for the company DIT.

Following the publication of the eulogy in April 2021, the company PAD challenged the award passed by the ICC a year earlier on account of the personal relationship between Clay and Gaillard. The eulogy reveals that Clay and Gaillard had known each other since 2000, were close friends and travelled abroad together. Clay even states that “[he] admired and loved [Gaillard].” When the ICC dismissed the challenge, the company filed an appeal to the Paris Court of Appeal, which annulled the award on the grounds that the eulogy did indeed reveal a personal relationship which the arbitrator was bound to disclose, but did not.

Article 11 of the 2021 ICC Arbitration Rules explicitly requires that “every arbitrator must be and remain impartial and independent of the parties involved in the arbitration,” and further mandates that every “prospective arbitrator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties.”

Further, Article 1456 of the French Civil Procedure Code requires that an arbitrator “disclose any circumstance that may affect his or her independence or impartiality.”

The decision was appealed by the DIT company and went before the French Court of Cassation, which upheld the decision of the Court of Appeal.