Interesante lectura para los que les interesa arbitraje internacional
International arbitration is an infamously cosy world where an intense relationship between a law firm and an arbitrator can cause problems. That's what happened in Aiteo Eastern E & P v Shell Western Supply & Trading [2024] EWHC 1993 (Comm). The case arises from two arbitrations (the "Offshore" and "Onshore" arbitrations) involving claims against Aiteo, a Nigerian energy company, by lenders under two facility agreements, which both chose ICC arbitration in London. The relevant lender, represented by Freshfields, nominated Dame Elizabeth Gloster to the Offshore arbitration. Dame Elizabeth is a retired English judge with a formidable reputation. She disclosed that she had been appointed as an arbitrator by Freshfields clients twice in the last two years. That's not unusual. The arbitrators issued a partial award determining, over Aiteo's objection, that they had jurisdiction. They later awarded costs against Aiteo and decided that the Onshore arbitration should be consolidated with the Offshore one. They then ruled that they had jurisdiction over the Onshore claims. Standard stuff, so far. But in November 2023, Dame Elizabeth disclosed that a few weeks earlier she had been instructed by Freshfields to provide an expert opinion on English law in another case. Then, in response to a query by Aiteo about any other Freshfields connections, she admitted that back when she had submitted the disclosure form on her appointment, she hadn't disclosed that a few months earlier she had been called in by Freshfields to give advice to one of its clients. (She attributed this failure to her clerk). What’s more, during the Offshore arbitration, Freshfields had instructed her to give an expert declaration in foreign law proceedings in yet another case. (She said it didn't cross her mind to disclose that. "If I should have done so, I can only apologise”.) Others may disagree, but I think this was a blazing-hot case for removal. These three disclosures came too late, and we know from Halliburton v Chubb, a case that was constantly being discussed during the relevant period, that a failure to disclose is itself a ground to doubt an arbitrator's impartiality. Aiteo applied to the ICC Court to remove Dame Elizabeth. The ICC Court removed her. Aiteo then went to the Commercial Court to set aside the tribunal's previous decisions. Mr Justice Jacobs decided (i) that he didn't have to follow the ICC Court's removal decision but (ii) the ICC Court was right to remove Dame Elizabeth and (iii) the Onshore jurisdictional award (alone) should be remitted to the tribunal for reconsideration. In the end, Aiteo's only gain will likely be a bit of a delay. It's hard to imagine the two tribunal members who previously ruled against Aiteo turning around and reversing their jurisdictional decision now that a new arbitrator is sitting with them. But we should be grateful for the insight the case brings into the murky realities of an often-secret world.