The French Court of Cassation has annulled an arbitration award rendered by the International Chamber of Commerce (ICC) in 2020, citing concerns over the impartiality of the presiding arbitrator, Thomas Clay. The decision follows a series of legal proceedings initiated by “the PAD company” after it emerged that Clay had written a eulogy for Emmanuel Gaillard, a lawyer representing the opposing party, “the company DIT” (as reported on JURIST).
Under the 2021 ICC Arbitration Rules, specifically Article 11, every arbitrator must remain impartial and disclose any circumstances that might question their independence. Article 1456 of the French Civil Procedure Code reinforces this requirement, mandating the disclosure of any potential conflicts of interest.
The arbitration initially awarded in favor of DIT was contested by PAD after the eulogy became public in April 2021. Detailed in the eulogy were significant personal ties between Clay and Gaillard, including long-standing friendship and personal admiration, which were not disclosed during arbitration.
The ICC dismissed PAD’s challenge, prompting an appeal to the Paris Court of Appeal. The appellate court annulled the award, citing the arbitrator’s failure to disclose crucial information that would affect his impartiality (further elaborated in a related document).
DIT appealed this decision to the Court of Cassation, which upheld the appellate court’s ruling. The decision underscores the importance of transparency and impartiality within arbitration processes, crucial principles for maintaining fairness in international commercial disputes.