Last week, the French Cour de Cassation issued its long-awaited decision in the Tecnimont matter. It quashed a decision of the Reims Court of Appeal which had set aside an ICC award on the basis of lack of independence of the Chairman. This matter raises significant questions, notably the legal force of the arbitration rules chosen by the parties and the breadth of the duties of independence and disclosure incumbent on arbitrators. It has now been the object of four French judicial decisions (two by Courts of Appeal and two by the Cour de Cassation). This judicial saga, however, is not yet over as the matter has been remitted to the Paris Court of Appeal for factual determination.
The dispute between Tecnimont SPA (“Tecnimont”) and J&P Avax (“Avax”) arose in the context of the construction of a propylene plant in Greece. The outsourcing contract between the parties contained an arbitration clause referring to the Court of Arbitration of the International Chamber of Commerce (“ICC”).
The Chairman was “of counsel” with a major law firm and was personally unaware of any links between his law firm and Tecnimont. The Chairman had not acted for Tecnimont or any related companies, but other lawyers at his law firm had acted as counsel and arbitrators in six different matters involving Tecnimont’s parent company and subsidiaries. The Chairman had issued an inaccurate declaration of independence by failing to indicate the ties from the outset. He only acknowledged them reluctantly, after multiple requests from Avax over an eight-month period...
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