At its session of 17 December 2020, the International Court of Arbitration of the International Chamber of Commerce ("Court") decided, inter alia:
1. that the challenge filed against all the members of the arbitral tribunal is admissible (Article 14(3));
2. to reject the challenge on the merits (Article 14(3));
3. to communicate the reasons for the decision on the challenge submitted by Claimants (Article 11(4)).
1. Failed to disclose his role as arbitrator in three unrelated arbitrations in which Prof Hanotiau also acts or acted as an arbitrator, while Prof Hanotiau sat as president in a related case between the same parties under the same contracts (ICC Case 19962/ASM/JPA) which concluded on 27 July 2017 with a Final Award. Claimants allege the Second Partial Award in ICC Case 20910/ASM/JPA closely follows the findings in the Final Award in the related case, and asserts the relationships in the unrelated arbitrations between Mr Gunter and Prof Hanotiau should have been disclosed timely by Mr Gunter and in any event cause reasonable doubt as to Mr Gunter’s independence and impartiality. In their letter of 14 December 2020, Claimants added the allegation that Mr Gunter appeared as counsel before Prof Hanotiau as Chairman in an unrelated arbitration which concluded with a Final Award in 2016 that - Claimants allege - was favorable to Mr Gunter’s client.
2. Failed to disclose his role as arbitrator in unrelated ICC Case 24400 in which he sat together with Mr Gaitskell (Respondent’s nominated co-arbitrator in this arbitration).
3. Been reluctant to conduct a conflict check with respect to all members of his firm.
1. Not timely disclosed he is sitting with Mr Gunter in unrelated ICC Case 24400.
2. Not timely disclosed that Mr McMullan of Atkin Chambers, counsel for Respondent, is currently representing a party in another arbitration in which Mr Gaitskell is acting as arbitrator. Mr Gaitskell was appointed as president by the two co-arbitrators.
3. Not timely disclosed that Mr White - who is in the same chambers as Mr McMullan but not as Mr Gaitskell - sits with Mr Gaitskell in one or two unrelated arbitrations in one of which Mr White together with the other co-arbitrator appointed Mr Gaitskell as president.
4. Failed to properly conduct a conflict search regarding other members of Mr Gaitskell’s chambers - Keating chambers.
1. Lacks the required independence and impartiality given the grounds for the challenges against Mr Gunter and Mr Gaitskell and the fact that Mr von Wobeser has been, or must have been, unduly influenced by deliberating with them.
2. Failed to disclose that he sits in an ongoing ICSID arbitration with Mr Jana, counsel for Respondent, and was arbitrator in a previous ICSID case in which Mr Jana acted as counsel, two circumstances that moreover in themselves cast reasonable doubts as to his independence and impartiality.
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