Originally from Investment Treaty Arbitration and International Law - Volume 18

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I. INTRODUCTION

On June 19, 2024, the French Court of Cassation (France’s supreme court) issued its decision in Port Autonome de Douala v. Douala International Terminal.  The decision affirmed the judgment of the Paris Court of Appeal, which, on January 10, 2023, sent shock waves through the arbitration community and annulled a EUR 56.8 million partial award issued by the arbitral tribunal on November 10, 2020 because of concerns over the independence and impartiality of the tribunal president, Thomas Clay.   These concerns surfaced based on a eulogy that Mr. Clay wrote for Emmanuel Gaillard (counsel to Claimant Douala International Terminal) who suddenly passed away on April 1, 2021 during the arbitral proceedings.  In his eulogy, Mr. Clay wrote of the profound impact that Mr. Gaillard had on him, stating that he “admired and loved” Mr. Gaillard and consulted Mr. Gaillard “before making any important decision.” 

This marked a rare event in the international arbitration world, where an arbitrator was disqualified because of a close personal relationship with a counsel in a case over which he presided. However, one ostensible peculiarity emanated from both the Paris Court of Appeals and the Court of Cassation decisions—neither touched on or even mentioned the seemingly ubiquitous IBA Guidelines on Conflicts of Interest in International Arbitration (the “IBA Guidelines”), first adopted in 2004.   This absence begs the question—do the IBA Guidelines continue to be relevant if the national courts (including the highest court) of the jurisdiction of one of the most prominent arbitral seats in the world do not take them into account when weighing conflicts of interest and eventually annulling an arbitral award?