1 / 11

4th CIS Local Counsel Forum, Kiev, Ukraine June 24 – 26, 2009 Dr. Thomas Rihm, Partner

4th CIS Local Counsel Forum Improper Behaviour in Connection with Establishment of an Arbitral Tribunal. 4th CIS Local Counsel Forum, Kiev, Ukraine June 24 – 26, 2009 Dr. Thomas Rihm, Partner Thouvenin Attorneys - at - Law Klausstrasse 33 8034 Zurich, Switzerland Phone: +41 44 421 45 45

roxy
Download Presentation

4th CIS Local Counsel Forum, Kiev, Ukraine June 24 – 26, 2009 Dr. Thomas Rihm, Partner

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. 4th CIS Local Counsel ForumImproper Behaviour in Connection with Establishment of an Arbitral Tribunal 4th CIS Local Counsel Forum, Kiev, Ukraine June 24 – 26, 2009 Dr. Thomas Rihm, Partner Thouvenin Attorneys - at - Law Klausstrasse 33 8034 Zurich, Switzerland Phone: +41 44 421 45 45 Fax : +41 44 421 45 00 E-mail t.rihm@thouvenin.com www.thouvenin.com

  2. A recent award in 2008 by Swiss Federal Supreme Court on arbitrator independence • dispute about television rights of Turkish Football Association (TFA) re forefront of World Championship 2006 in Germany • award issued by Court of Arbitration for Sports in Lausanne (CAS) under CAS-Code • in the judicial spotlight IBA Guidelines on Conflicts of Interest in International Arbitration May 2004

  3. Improper constitution of arbitral tribunal: When must the claim be made ? • Swiss Federal Supreme Court: as soon as a party learns about the facts potentially impairing arbitrator's independence • unless proper due diligence reveals or could have revealed such facts at earlier stage in arbitral proceeding • no reliance in arbitrators' confirmation of independence in their acceptance letters

  4. Improper constitution of arbitral tribunal ? • each party nominated its party arbitrators • party arbitrator nominated chairman • chairman, party arbitrator and TFA counsel: all members of Rex Sport, Asociación de Asesores del Deporte • Rex Sport: 26 members only; 8 listed CAS arbitrators

  5. Swiss Federal Supreme Court dismisses impaired arbitrators' independence due to • delay in claiming impaired independence • constellation cleared by Art. 4.4.1 of IBA Guidelines (so-called Green List) • IBA Guidelines: "precious tool contributing to the harmonization and unification of the independence standards in international arbitration"

  6. IBA Guidelines • issued by Committee on Arbitration and ADR of International Bar Association • 19 experts from 14 countries • summary of best current international practice • applicable to commercial arbitration including international investment arbitration • applicable to tribunal chairs, sole arbitrators and party appointed arbitrators • no overriding of national arbitration laws

  7. IBA Guidelines • Non-Waivable Red List: absolute no-goes • Waivable Red List: all parties, all arbitrators and arbitration institution expressly agree to waive (having full knowledge about problematic facts) • Orange List: arbitrator's disclosure duty; parties must complain • Green List: no arbitrator's disclosure duty

  8. Waivable Red List • arbitrator has given legal advice or provided expert opinion on the dispute • arbitrator holds shares, either directly or indirectly, in one of the parties • arbitrator currently represents or advises one of the parties • arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties

  9. Orange List • arbitrator within the past three years served as counsel for one of the parties or has previously advised or been consulted by the party in an unrelated matter, but the arbitrator and party have no ongoing relationship • arbitrator within the past three years appointed as arbitrator on two or more occasions by one of the parties

  10. Green List • arbitrator previously published a general opinion (such as in a law review article or public lecture) concerning an issue which also arises in the arbitration (but this opinion is not focused on the case that is being arbitrated) • arbitrator's law firm acted against one of the parties in an unrelated matter without the involvement of the arbitrator • a firm in association or in alliance with the arbitrator's law firm, but which does not share fees or other revenues with the arbitrator's law firm, renders services to one of the parties or an affiliate of one of the parties in an unrelated matter

  11. Green List • arbitrator has a relationship with another arbitrator or with the counsel for one of the parties through membership in the same professional association or social organization • arbitrator and counsel for one of the parties or another arbitrator previously served together as arbitrators or as co-counsel • arbitrator having an initial contact with the appointing party or an affiliate of the appointing party (or the respective counsels) prior to appointment, if this contact is limited to the arbitrator's availability and qualifications to serve or to the names of possible candidates for a chairperson and not having addressed the merits or procedural aspects of the dispute

More Related