In the second half of 2020 there have been two heavily discussed challenges to arbitration awards stemming from an arbitrator’s nondisclosure. The more recent, OOGC America, L.L.C. v. Chesapeake Exploration, L.L.C, was an appeal in the U.S. Fifth Circuit. The other, Eiser Infrastructure Limited and Energia Solar Luxemburg S.À.R.L. v. Kingdom of Spain, was heard…

The strength of any dispute settlement mechanism will depend upon its consistency with the requirements of independence and impartiality. Disclosures made by adjudicators prior to adjudicating a dispute, and challenges raised against adjudicators during the course of dispute settlement, target a perceived absence of independence or impartiality. The purpose of this post is to juxtapose…

On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…

The findings of the recent decision Ali Riza et al. v. Turkey (“Riza“) of the European Court of Human Rights (“ECtHR“) dated 28 January 2020, when read in conjunction with the ECtHR’s previous decision Mutu and Pechstein v. Switzerland (“Mutu-Pechstein“) dated 2 October 2018 (which concluded the “Pechstein Saga”), could potentially have an impact on…

Although some might have considered 2019 a bit “lackluster”,1)Th. Clay, Panorama – Arbitrage et modes alternatifs de règlement des litiges: novembre 2018-décembre 2019, Dalloz, 26 December 2019. a number of noteworthy decisions by the Paris Court of Appeal and French Supreme Court have come to refine on the now well-established French case law on international…

Like virtually all arbitration laws, the Austrian Arbitration Act is silent on whether the lack of impartiality and independence of an arbitrator may be invoked for the first time in setting aside proceedings in cases where a party becomes aware of the relevant circumstances only after the award was rendered. The Austrian Supreme Court has,…

Recent legislative developments have shown that Georgia strives to become a hub for dispute resolution in the Caucasus region. The legislative framework on commercial arbitration is now fully tailored to the needs of international commercial arbitration: the law of Georgia on arbitration (the “Law on Arbitration”) is based on the UNCITRAL Model Law on International…

This is the 2nd part of the report highlighting the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) issued in 2019.   Ne Eat Arbiter Extra Petita In the decision 4A_294/2019 / 4A_296/2019 of 13 November 2019, the Supreme Court dealt with an extra petita appeal against an ICC-award….

The recent public hearing at the Court of Arbitration for Sport (‘CAS’) involving the World Anti-Doping Agency (‘WADA’) on one side, and the Chinese swimmer Sun Yang and the Federation Internationale de Natation (‘FINA’) on the other, has been plagued with controversies. In the anticipation of the award (expected in early 2020), this seems to…

Arbitrators and tribunal-appointed experts are at all times obliged to disclose any and all circumstances that might give rise to doubts as to their impartiality and independence. This is one of the most fundamental duties to safeguard the legitimacy of arbitration. Yet, what are the consequences if they fail to do so? This question has…

The ICSID Rules Amendment Project Marking the latest step in its procedural rules overhaul, the International Centre for Settlement of Investment Disputes (“ICSID”) Secretariat released the third Working Paper on Proposals for the ICSID Arbitration Rules Amendments in late August 2019 (“WP3”). It is safe to say that the revisions of the ICSID Rules arrive…

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…

Independence and impartiality of arbitrators are the hallmarks of arbitration. The amendments to the Arbitration and Conciliation Act 1996 (“Act”) in 2015, which adopted the international best practices from the International Bar Association Guidelines on Conflict of Interest (“IBA Guidelines”), aimed to bolster not only the neutrality of arbitrators, but also the perception of neutrality….

Comments on the Decision of the Paris Court of Appeal Dated 27 March 20181)CA Paris, Pôle 1, Chambre 1, 27 mars 2018, n°16/09386. Neither the author nor Schellenberg Wittmer was personally involved in any of the cases mentioned in this blog, and all information disclosed is publicly available. The appellant in the case before the…

Independence and impartiality of an arbitrator form the bedrock of effective and fair legal proceeding. However, there are many requisites to an impartial tribunal such as fair and timely disclosures of potential conflicts by parties and the arbitrators. In this article, I shall explore the critical impact of the professional relationships of an arbitrator’s law…

Introduction Currently, social network trends are focused on consumer markets, such as the fashion or food industry. The uninterrupted use of smart phones, computers, tablets, Ipod´s, etc. with unlimited internet connection has resulted in us being mere dependent beings on these devices. Social networks are everyday forms of social interaction, defined as a dynamic exchange…

The IBA Guidelines on Conflict of Interest in International Arbitration (hereafter, Guidelines) have gained widespread legitimacy across jurisdictions and types of arbitrations. The Guidelines lay down General Standards (Part I) and provide Practical Application List (Part II). Its soft law nature is an example of codification by compilation (Part I) and innovation (Part II). The…

Arbitrators have an overarching duty to act fairly and impartially. This is a fundamental aspect of arbitration that arises out of one of the key advantages of the arbitration process, that is, the parties’ abilities to select the tribunal or arbitrator. This duty is commonly enshrined in arbitration laws and institution rules. For example, Article…

It is a fundamental principle in international arbitration that every arbitrator must be and remain independent and impartial of the parties and the dispute The issue of arbitrator independence, impartiality and neutrality has been a frequent source of contention in India. It is particularly rampant in disputes arising out of contracts executed before the amendment…

On July 12, 2017, the Colombian Supreme Court issued a decision on the enforcement of the arbitral award rendered in the ICC case (No. 16088/JFR/CA) Tampico Beverages Inc. v. Productos Naturales de la Sabana S.A. Alquería, seated in Santiago de Chile. The decision provides for an interesting differentiation of the standard of review to be…

The 29th Annual Workshop of the Institute for Transnational Arbitration (“ITA”), which took place on 14-15 June 2017 in Dallas, focused on a timely subject of much importance to the future of international arbitration, namely, the “Challenges to the Legitimacy of International Arbitration.” The event was co-chaired by Caline Mouawad (King & Spalding), Jeremy K….

The first weeks of 2017 have again seen an exchange between Croatia and Slovenia about the continued work of the Arbitral Tribunal expected to decide this year on the course of the boundary between the two states. The Tribunal – formed under the 2009 Arbitration Agreement – will do so despite Croatia’s decision to terminate…