cass. fifteen June appeal n°-)
The procedure for annulment of an arbitral award must not be a second route to challenge the constitution of the arbitral Tribunal to a party who may have belatedly asked for the recusal of an arbitrator (CA telecommunications company and an african State are co-shareholders of a corporation. The telecommunications company before the international Chamber of commerce a request for arbitration. The president of the arbitral Tribunal points out in its declaration of independence of the fourteenth of July does not have to reveal any fact or circumstance of a nature as to call into question his independence or to generate a reasonable doubt in the minds of the parties in respect of its impartiality. The board of the telecommunications company shall inform the other party of the twenty-one August that the president of the arbitral Tribunal had been appointed arbitrator by the ICC in the framework of a previous case which involved its parent company. The twenty-four October, the State sign the deed of assignment. The act of mission in the framework of the rules of arbitration ICC is an important step of the arbitration procedure which sets the mission of the arbitral Tribunal, including determining the parties to the arbitration, the place of arbitration, a brief statement of the claims of the parties, the list of referees and their contact details as well as the rules applicable to the proceedings. The rules of arbitration of the ICC allows a party to an arbitration to request the disqualification of an arbitrator. Article fourteen of these regulations requires that the application for recusal is formed: The arbitration procedure is ongoing and an award is made against the State. The State decides to request the annulment of the award before the Paris court of appeal. The court of appeal of Paris rejected the application for annulment. The court of appeal considered that the State was deemed to have renounced to challenge the constitution of the arbitral Tribunal by the absence of a protest lodged during the arbitration proceedings. The Court of cassation approves the decision of the court of appeal.
A dispute arises between the shareholders
It considers that the Paris court of appeal has rightly held that the action for annulment, alleging the irregularity of the constitution of the arbitral Tribunal could not be upheld.
The Court of cassation gives the act of mission on an added importance as she believes that this act of mission is the confirmation of the regularity of the constitution of the Tribunal and the appointment of the arbitrators.
The Court of cassation and the court of appeal refuse, therefore, that the action for annulment can be a way to circumvent the time limits fixed in the arbitration rules to request the disqualification of an arbitrator.
Re-open the debate on the disqualification of an arbitrator after the end of the arbitration so that the causes of the application for recusal were known during the arbitration would have created an uncertainty in the excess that would have weakened the procedure of the arbitration.
The solution must therefore be approved. The application for annulment should not be a way of catching up to challenge the validity of the constitution of the arbitral Tribunal. The solution would have been probably different if the cause of the possible disqualification was not discovered until later, and if the revelation of this information had not intervened at the beginning of the arbitral procedure. The Village of justice is the st site of the community of business Law for free access created in (learn more).
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