Arbitrators’ Conflicts of Interest in Dommo, Vidatel and Saad – Three Landmark Decisions of the (New) International Commercial Chamber of the Paris Court of Appeal
Authors: Pączek Jarosław 
Published: December 2024

The issue of the duty of arbitrators to disclose circumstances relevant to their impartiality and independence has been widely discussed in literature and addressed by various courts worldwide, including in earlier issues of Law Enforcement Review.
As it was discussed previously in the context of the NY Convention on the recognition and enforcement of international arbitral awards, enacted in 1958, failure by arbitrators to disclose potential conflicts of interest may constitute a basis for jurisdictional challenges. If such challenges are not successful, it could be taken later by a court as a breach of the parties’ right to be heard, and consequently lead to the annulment of the arbitral award.
In Halliburton v. Chubb, the English Supreme Court denied a motion to dismiss a presiding arbitrator due to the lack of disclosure of his multiple nominations in arbitral proceedings which addressed a similar legal issue. The Court, deliberating over potential “bias”, referred to the test of a “fair-minded and well-informed observer”. In Dommo v. Barra and Enauta, the French Court of Appeal in Paris refused the annulment of five arbitral, partial awards based on different grounds using, however, a similar narrow interpretation of the appropriate legal provisions. Such a position of the Court showed a negative attitude towards challenges, reconfirming at the same time the arbitrators’ steadfast duty under French law to disclose relevant information. The Court was above all else concerned with the publicity of the information available through the Internet. By giving directions as to what should be taken as the “public domain” and what should not, the Court navigated between two opposing principles, i.e. the “duty of curiosity” on the one side and the “duty of disclosure” on the other, attributable respectively to the participants of the arbitral dispute.
Incidently, the Dommo decision was the first to be rendered by the newly created International Commercial Chamber of the Paris Court of Appeal. The creation of this chamber is innovative in nature and aims at streamlining disputes with a so-called ‘foreign element’, including international arbitration disputes.
A similar chamber was created at the Paris Commercial Court. Two protocols of procedure, signed on 7 February 2018 by the Paris Court of Appeal and the Paris Bar, regulate the activity and procedure before both chambers.
The other two decisions of the same court dealt with similar questions of law but under different factual backgrounds. In Vidatel, the court in Paris upheld the principle of equality in the designation of the arbitrators but stressed the importance of the so-called loyalty principle of the parties, which imposes on them an obligation to act in bona fide and restricts them from abusing post-arbitral proceedings. This landmark decision influenced amendments to the ICC rules and already forms a pivotal part of the body of French jurisprudence.
In Saad, the court dealt rather with the principle of competence-competence and the applicability to jurisdictional challenges in arbitration of the European law on the jurisdiction and enforcement of judgments in civil and commercial matters. The Court of Appeal confirmed that the relevant Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 did not apply to arbitration and any claims related to the arbitrators’ nominations and actions shall be dealt with based on the rules of civil procedure of the forum.

Keywords: relevance of the disclosures, independence and impartiality of arbitrators, duty of curiosity, loyalty of the parties, publicity of information available on the web, abuse of annulment proceedings, equality in the designation of the arbitrators, liability of the arbitrators