The first judgment of the new International Chamber of the Court of Appeal of Paris was handed down on 25 February 2020 in Dommo Energia SA v. Barra Energia do Brasil Petroleo e Gas Ltda and Enauta Energia SA, a judgment which – in line with previous French authorities – emphasizes the relationships between the arbitrator’s duty of disclosure and the “duty of curiosity” of the parties.
The challenge of an arbitrator for breach of his/her duty of disclosure may indeed have different purposes. On the one hand, some challenges are fully justified by the honest concern that the arbitrator be, consciously or unconsciously, not impartial and independent. On the other hand, other challenges are the result of a deliberate witch hunting which aims at simply getting rid of an arbitrator just because that party has the feeling that he/she is not going to find in his/her favour.
The issue whether a given circumstance concerning an arbitrator was of public knowledge is one of the battlefields on which this war is fought.
Non disclosure of a circumstance, when it is of public knowledge, in fact deprives the challenge of its grounds which are that such circumstance had been concealed to that party.
This statement may sound obvious when expressed in these terms.
The difficulty lies in the borderline between the level of the arbitrator’s conflicts control and the parties’ controls as to possible “liaisons dangéreuses” of the arbitrator.
On the one hand, the “duty of curiosity” should lead a party, in order to check conflicts, to raise readily available information, without having to carry out a thorough investigation of the entire professional and private life of the arbitrator. What exceeds such readily available information then seems to go beyond the duty of curiosity of the parties and cannot be treated as public and then known by the interested party.
On the other hand, the arbitrator in his/her conflicts controls may be reasonably expected to concentrate his/her energies on manifest professional, financial, personal and intellectual links of himself (of his law firm or business, of people close to him/her, and of his/her “mates”), including as to companies their major shareholder and top management or associated companies, and as to a person, their friends and partners, which might cast doubts as to his/her impartiality and independence, without having to review his/her life and to anguish for days and nights trying to identify in which way he/she might be attacked).
Any other non material links do not – subject to examining each specific situation of course – seem to necessarily entitle to attack an arbitrator, damaging his/her reputation with the result that if he/she is a very earnest person, his/her life may easily be spoiled.