What happens when an arbitrator refuses to answer fundamental questions about their impartiality that only they can address? Questions like, “Have you received any promises or gifts from any of the parties: Ms Aphrodite, Ms Hera or Ms Athena?” or even “Do you have any interest in or connection to Ms Helen, a person associated…
On 18 June 2024, the Brazilian Superior Court of Justice issued an important decision, which it clearly established the distinction between the breach of the duty of disclosure and the loss of impartiality or independence of arbitrators. Among other arguments, there was the claim of a violation of the duty of disclosure, capable of generating…
This post provides a recap of notable arbitration-related developments in France in 2023. Far from being an exhaustive account, it focuses on French court decisions in the areas identified below. Overall, French courts have not only consolidated their approaches on recurring topics—as was the case in 2020, 2021, and 2022—but have also taken a slightly…
How strong a scent of a conflict will a court tolerate before setting aside an international commercial arbitration award on procedural grounds? In Aroma Franchise Company Inc. et al v. Aroma Espresso Bar Canada Inc. et al, the Ontario Superior Court of Justice set aside a $10 million award as a result of an undisclosed…
It is undisputed that arbitration depends on the trust placed by the parties in the arbitrators. The Brazilian Arbitration Act (the “BAA”) reaffirms this principle when it provides that an individual may only act as an arbitrator if he/she “is trusted by the parties” (BAA, Article 13) and when it puts the burden to disclose…
Despite being a relatively young market at just over 20 years old, Brazilian arbitration has experienced rapid growth. As of 2020, Brazil ranked second in the number of arbitrations filed with the International Chamber of Commerce (ICC), surpassing all European, African, and Asian jurisdictions. Brazil is also among the top five nationalities represented among arbitrators,…
The Swiss Federal Supreme Court (the “Court”) recently outlined when a subsequently discovered ground for challenge of an arbitrator can be a possible ground for review of an award. The present post summarizes and discusses the Court’s decision. Background In decision 4A_100/2022 of August 24, 2022, the Court dealt with a review request against…
This post provides a review of the most noteworthy arbitration-related developments in France in 2022. In a nutshell, last year, French courts consolidated previous approaches and solutions endorsed in 2020 and 2021, and confirmed major developments of French arbitration law. The Fear of a Substantive Review of Awards by the Annulment Judge Are French…
The Arbitration Act 1996 (the “Act“), the principal legislation governing arbitration in England, Wales and Northern Ireland, came into force 25 years ago. This landmark Act has enabled London to become a top arbitral seat and England and Wales is now home to at least 5,000 arbitrations every year. On 22 September 2022, to mark…
In Decision 4A_520/2021 of 4 March 2022, the Swiss Federal Tribunal (“SFT”) was requested to determine whether the chairperson of a panel in proceedings before the Court of Arbitration for Sport (“CAS”) lacked independence or impartiality given his repeat appointments by FIFA. The SFT declared the challenge inadmissible under R34(1) CAS Code, yet still proceeded…
Corruption, annulment of arbitral awards and court intervention mark the main developments for 2020 in Latin America. Our contributors this year reported on the most important judicial decisions and legislative measures impacting the legal framework of various jurisdictions in the region. A new ‘hot topic’ arising from the COVID-19 pandemic is the interplay between arbitration…
On 11 August 2020, the Court of Appeals of the state of São Paulo, Brazil, annulled an arbitral award1)1ª Câmara Reservada de Direito Empresarial do Tribunal de Justiça de São Paulo. Apelação Cível no. 1056400-47.2019.8.26.0100 [Appeal no. 1056400-47.2019.8.26.0100]. on the grounds that the chair of the arbitral tribunal had failed to timely disclose his appointment…
The Costa Rican court in charge of deciding upon arbitral matters recently set aside an award on the ground of the arbitrator’s failure to disclose a circumstance that could be found in the case file. In a five-page judgment dated June 27, 2019,1)Judgment from 27 June 2019, PH Chucás S.A. v. Instituto Costarricense de Electricidad,…
In June 2019, the Spanish Arbitration Club (“CEA”) launched a new Code of Best Practices in Arbitration (the “Code”). This post briefly describes the scope of the Code and provides insights on the specific best practices proposed by CEA. The initiative is commendable, as it reflects the CEA community experience and tackles hot topics in…
The arbitrator’s duty of disclosure is often subject to misunderstandings, particularly in regards to its content and scope, as well as its relationship with the independence and impartiality of the arbitrator. That is why for almost a decade I have been raising in my publications, both on international commercial arbitration and investment arbitration, various criteria…
