A Party’s Failure to Timely Rely on Notorious Publications Edited by an Arbitrator Precludes the Setting Aside of an Award for Lack of Impartiality. Note on Paris Court of Appeal Decision of 22 February 2022

Abstract

The Paris Court of Appeal has recently held that a party was precluded from relying for the first time before it on the arbitrator’s alleged partiality based on articles authored by third parties and published in a journal co-edited by the arbitrator, whose existence and contents were notorious at the time of his appointment. To be allowed to rely on these facts in annulment proceedings, the applicant ought to have raised them before the sole arbitrator within the time limit provided for in the ICC Rules to challenge an arbitrator. A party’s failure to do so leads to the inadmissibility of its setting aside application. For an information to be notorious, it is sufficient that it be “easily accessible”. The fact that such information is contained in a database subject to a paying subscription is not sufficient to characterise a default of accessibility for arbitration professionals. Accordingly, information contained in such a database may be considered as “easily accessible”, and therefore “notorious” for arbitration practitioners. In addition, neither the scientific work freely carried out by the arbitrator in the context of his activities as editor of an arbitration journal, nor the titles and content of the articles relied upon to seek the setting aside of the award were such as to call into question the arbitrator’s impartiality.