A Duty to Disclose, A Duty to Inquire: French and European Courts Address an Arbitrator’s Independence and Impartiality

17 August 2021
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Key takeaways:
  • The Paris Court of Appeal and the European Court of Human Rights have recently rendered several noteworthy decisions on arbitrator independence and impartiality. The decisions address an arbitrator’s duty to disclose, the parties’ responsibility to enquire into potential conflicts, the admissibility of arguments regarding independence at the annulment stage and the jurisdiction competent to hear claims based on alleged breaches of the duty to disclose.
  • In two cases about failure to disclose, the European Court of Human Rights held that a party cannot be presumed to know about an arbitrator’s undisclosed professional activities, while the Paris Court of Appeal applied the “notoriety” exception to the duty to disclose, holding that parties are expected to show some level of “curiosity” when conducting their due diligence.
  • In a separate decision, the Paris Court of Appeal refused to consider arguments regarding an arbitrator’s independence and impartiality that had not been raised before the tribunal under the “improper constitution” ground for annulment, but it agreed to consider them as a potential violation of “international public policy”.
  • Finally, the Paris Court of Appeal clarified that the courts of the seat of arbitration generally have jurisdiction to hear claims against arbitrators regarding performance of their duties.