In a decision dated 15 June 2017, the French Cour de cassation held that an acknowledgment of the validity of the arbitral tribunal’s constitution in the terms of reference amounts to a renunciation to invoke the tribunal’s lack of independence and impartiality.
In this case, the chair of the tribunal did not disclose any element in his declaration likely to raise reasonable doubt as to his independence and impartiality. However, one of the parties to the arbitration proceedings, the Republic of Equatorial Guinea, was informed by the opposite party that the chair was appointed several years ago in an arbitration procedure, without any link to the present one, but involving the opponent’s parent company. Despite this information, the Republic of Equatorial Guinea did not put forward any objection to the declaration of independence and impartiality of the chair. Moreover, it recognized the validity of the arbitral tribunal’s constitution in the terms of reference signed after having been informed of the chair’s above-mentioned designation. It was only during a procedural ruling, which seemed partial in the Republic of Equatorial Guinea’s eyes, that the latter decided to invoke for the first time the lack of independence and impartiality of the chair. It then filed a request to set aside the arbitral award on the same grounds.
The Court of Appeal dismissed the argument and the Cour de cassation confirmed this decision. Indeed, and according to the Cour de cassation’s reasoning, the Republic of Equatorial Guinea, notwithstanding the information given by the opposite party (information that was also easily and publicly accessible), acknowledged the valid constitution of the arbitral tribunal in the terms of reference and put forward no objection against the arbitrators. Therefore, the Republic of Equatorial Guinea was found to have waived its right to raise any argument based on lack of independence and impartiality, leading to a dismissal of its action to set aside the arbitral award on the ground of the invalidity of the arbitral tribunal’s constitution.