THE FINAL DECISION IN THE VIDATEL CASE: THE APPLICATION OF THE PRINCIPLE OF EQUALITY IN THE CONSTITUTION OF THE ARBITRAL TRIBUNAL

In Vidatel v. PT Ventures, Mercury and Geni case (Cass. Civ. 1ère, 9 November 2022, No 21-17203), the French Supreme Court upheld the 2021 decision of the Paris Court of Appeal (26 January 2021, n°19/10666), rejecting Vidatel Ltd’s (Vidatel) request to set aside the 2019 ICC award rendered in favour of PT Ventures SGPS (PTV).  This case provides interesting further guidance on how the French courts may approach the principle of equality and how it can interact with the parties’ arbitration agreement.

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Arbitrators’ independence and impartiality—a new decision from the International Chamber of the Paris Court of Appeal (Rio Tinto France and Rio Tinto Alcan Inc v SAS Alteo Gardanne)

HSF Senior Associate Vincent Bouvard has authored an article for LexisPSL on the recent decision of the International Chamber of the Paris Court of Appeal in Rio Tinto France and Rio Tinto Alcan Inc v SAS Alteo Gardanne on arbitrators’ independence and impartiality. The article can be found here.

This analysis was first published on Lexis®PSL on 1 April 2022 and can be found here (subscription required).

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MALAYSIA: COURT OF APPEAL REFUSES STAY OF PROCEEDINGS WHERE PARTY ACTS INCONSISTENTLY WITH AN EXPRESS RESERVATION OF RIGHT TO REFER DISPUTE TO ARBITRATION

On 10 June 2020, the Court of Appeal in Yeo Eng Lam v Infinity Vantage Sdn Bhd (Civil Appeal No. N-02(IM)(NCvC)-507-03/2018, Court of Appeal considered whether an express reservation of a right to refer a dispute to arbitration in a defence and counterclaim pleading was effective to preserve a right to elect to arbitrate a dispute wrongly commenced in court. The court also considered whether an application to disqualify solicitors in the disputed court proceedings amounts to a step in the proceedings which would preclude a party from staying the court proceedings in favour of arbitration.

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New York-based partner Christian Leathley speaks to Law360 for a Q&A on trends and challenges in international arbitration

Herbert Smith Freehills partner Christian Leathley speaks to Law360 for an exclusive Q&A on his career as a leading practitioner in international arbitration. Christian covers a range of topics including the growing problem with "issue conflict" in investment arbitration, how he came to focus on Latin America and receiving resumes that look like Ban Ki-moon's.

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ICC Issues Guidance on Conflict Disclosure by Arbitrators

The Court of Arbitration of the International Chamber of Commerce (ICC) has issued guidance as part of its updated "Note to parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of Arbitration" to provide clarification on the circumstances in which an arbitrator should opt to disclose possible conflicts of interest. The Court hopes that the Note will assist arbitrators in knowing when to make a disclosure and ensure arbitrators are "forthcoming and transparent in their disclosure of potential conflicts".

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Publication of New IBA Guidelines on Conflict of Interests in International Arbitration – the key changes

On 23 October 2014, the IBA Council passed a resolution adopting the anticipated revision to its “IBA Guidelines on Conflicts of Interests in International Arbitration” (2014 Guidelines), which have been widely used and referred to by practitioners and arbitrators in the decade since their adoption in 2004 (Original Guidelines). A copy of the 2014 Guidelines can be found by clicking here.

The 2014 Guidelines, published on 28 November, do not mark a substantial departure from the Original Guidelines, and instead make refined changes to reflect and inform current debates on issues in modern arbitral practice, and “the increased complexity in the analysis of disclosure and conflict of interest issues“. In clarifying the standards expected of arbitrators and parties, it is the aim of the 2014 Guidelines “that arbitration proceedings are not hindered by ill-founded challenges against arbitrators” or that “the legitimacy of the process [is] not affected by uncertainty and lack of uniformity“.

The 2014 Guidelines were drafted by the IBA Conflicts of Interest Subcommittee (IBA Subcommittee), which was made up of 27 leading arbitrators and arbitration practitioners, including Global Head of Herbert Smith Freehills International Arbitration Practice, Paula Hodges QC. The IBA Subcommittee consulted 150 arbitral practitioners by an online survey, as well as 19 arbitral institutions, and sought to reflect “diverse legal cultures and a range of perspectives, including counsel, arbitrators and arbitration users“.

Paula Hodges QC, Global Head of Herbert Smith Freehills’ International Arbitration Practice, says of the 2014 Guidelines that: “we hope that these new Guidelines will prove useful in providing more clarity and a level playing field to parties and arbitrators, striking the right balance between impartiality and due process on the one hand and unmeritorious challenges on the other”.

Christian Leathley, International Arbitration Partner in Herbert Smith Freehills’ London office, who is a member of the IBA Arbitration Committee, comments:  “this is the product of a lot of work and in-depth consideration of the issues facing the sub-committee.  It also drew on the practical experience of many arbitrators which helps ensure this is an instructive guide for all arbitration practitioners”.

Some of the key revisions are summarised as follows:

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Paris Court of Appeal considers scope of arbitrator’s obligation to disclose any potential conflicts of interest

 The Paris Court of Appeal has overturned a judgment granting exequatur (order for enforcement) of an arbitral award as a result of the sole arbitrator’s failure to disclose a potential conflict of interest. At the time of his appointment in September 2009, the arbitrator had disclosed that “a partner in my firm’s Toronto office has represented” the sole shareholder of one of the parties to the arbitration “over a number of years“. However, in December 2010, the firm published a report that it had advised that same shareholder on a recently concluded transaction.

The case is a reminder of the burden on arbitrators to provide a full disclosure of any potential conflicts, and to update such disclosure should new conflicts arise during the course of an arbitration. (S.A. Auto Guadeloupe Investissements (AGI) c/ Columbus Acquisitions Inc, Cour d’appel de Paris, Pôle 1 – Chambre 1, n° 13/13459 (14 October 2014).)

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