Jurisdiction(s):
United Kingdom

Swiss Federal Supreme Court: late bias challenge waived; repeat appointments and law clerk later joining respondent’s counsel insufficient to show apparent bias in ICC arbitration (A & B v C)

Published on: 02 July 2024

Published by a LexisNexis Arbitration expert

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Article summary

Swiss Federal Court Dismisses Challenge to Arbitrator for Repeat Appointments (A & B v C) — 4A_575/2023, Bundesgericht (Schweiz)

What are the practical implications of this case?

The Swiss Federal Court has long been sceptical of attempts to demonstrate apparent bias by piecing together several circumstances, and this decision follows that approach. Procedural missteps that drew no timely objection are treated as irrevocably waived; parties cannot revive them later, not even as part of a broad, retrospective review of the arbitrator’s behaviour. As a result, allegations of bias that rest on a constellation of events or factors have become even harder to sustain.

The judgment also considers repeat appointments. Under the 2024 IBA Guidelines on Conflicts of Interest in International Arbitration (‘BA Guidelines’), three or more appointments by the same counsel or law firm within the previous three years appear on the Orange List (section 3.2.8). Accordingly, repeat appointments may prompt doubts about an arbitrator’s independence and must be disclosed. Since the objection in this matter was submitted out of time, the court was not required to engage with the IBA Guidelines...

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