International arbitration / Arbitrators conflict disclosures rules / Feb 22, 2016 ICC guidance note
We refer to the www.ohada.com newsletters dated December 18, 2016 and December 22, 2016.
In view of the importance of arbitration as an efficient dispute resolution mechanism under the OHADA system of unified business laws, your www.ohada.com website has always been very much concerned about the very strict adherence by arbitrators to their obligations of independence and impartiality.
By way of consequence, www.ohada.com has always been adamant that rules governing arbitrators conflict disclosure obligations should be very strictly upheld by all arbitration centers. Unfortunately, this has not always been the case in the recent past, notably in a notorious AAA / ICDR arbitration case involving a major international arbitrator, and its law firm, Fasken Martineau Dumoulin LLP.
It deems its efforts have been recognized and vindicated by the unanimous decision of the International Chamber of Commerce's International Court of Arbitration Bureau to adopt on Feb 22, 2016 a new guidance note aimed at ensuring that arbitrators are transparent and forthcoming in their disclosure of potential conflicts.
This guidance note, which hopefully will be carefully read and taken into account by all international arbitration centers worldwide and all arbitrators, whoever they are and whatever their reputation is, is a most welcome reminder that arbitrators have a duty to disclose any potential conflict of interest throughout the entire duration of the arbitration.
The ICC recalls that the guidance note has been implemented under the fundamental principles that parties to an arbitration have a right to be fully informed of all relevant facts or circumstances in order to be satisfied that an arbitrator meets its obligations of independence and impartiality.
The issue of arbitrators independence has come to the fore worldwide again, after France Cour de Cassation, the French Supreme Court, has declared unenforceable a partial award rendered by Henri Alvarez, attorney at Fasken Martineau Dumoulin LLP, who had failed to disclose business relations between his law firm and the parties, in the very course of an arbitration in which he was sole arbitrator.
In its December 16, 2016 ruling, the French Highest Court determined that Henri Alvarez, and his Canadian Firm, fasken Martineau, should have disclosed that his firm had ongoing business relations with the parties.
Joseph KAMGA
kamgajoe@gmail.com