Introduction: Arbitration is frequently included in M&A agreements across a variety of industries, as well as commercial contracts in the construction and energy industries. Belgian courts usually act as the main forum for commercial disputes. In Belgium, the Belgian Centre for Arbitration and Mediation (CEPANI) is the most common arbitration institution. A considerable number of lawsuits are also presented before the International Chamber of Commerce, mainly where one of the parties is not Belgian (ICC). The Belgian Law of Arbitration is based on the UNCTRAL Model Law. The ground for setting aside an arbitral award before the Court of First Instance is given under Article 1717 BJC.
On 2017 June 17, the Brussels Court of First Instance refused to set aside an ICC award. The tribunal secretary partially drafted the award. The court refused this ground and held that such assisting in drafting by the tribunal secretary would be valid as long as the arbitrators evaluate and correct their work.
In 2009, the European Commission ("Commission") signed a contract for the building of sewers, water distribution networks, and pumping stations in Cyprus with two contractors - a Cypriot business and a subsidiary of a German group. Following the discovery of errors, the Commission and the two contractors differed as to the cause of the problems, resulting in ICC arbitration procedures in Brussels under Belgian law. The arbitral panel delivered a partial judgement on liability in February 2020, primarily favouring the Commission.
Analysis: The contractors were dubious about the tribunal secretary’s involvement in drafting the arbitral award. Following the arbitration procedures, the contractors questioned the arbitral tribunal regarding the involvement of the tribunal secretary in the formulation of expert witness questions and her participation in the production of the arbitral judgement.
The Chairman of the arbitral panel acknowledged in their response that the tribunal secretary produced a sample list of questions and aided in writing the decision. On the other hand, the Chairman made it apparent that he had gone over the list of queries and that there was not a single term in the award that he had not gone over, examined, and changed if necessary.
The two contractors proceeded to seek additional information, which prompted the chairman to quit by criticising the defendants' behaviour which was way too aggressive and irritating. Following that, the two contractors filed a civil action with the Brussels Court of First Instance, requesting that the arbitral award be set aside on several grounds, including a delegation of decision power to the tribunal secretary, which is a ground for nullity of an arbitral award under Belgian Code of Civil Procedure Article 1717, §3, a) v).
The Brussels Court of First Instance first declared that the intuitu personae aspect of selecting the arbitrators, who are committed to determining the case personally, is one of the essential elements of arbitration. However, arbitral tribunals increasingly depend on administrative secretaries, whose responsibilities might extend beyond administrative and organisational duties. According to the Court, the mere fact that an arbitral tribunal entrusts the translation of all or part of the award or a list of questions for expert witnesses to a tribunal secretary is not enough to show a delegation of decision authority. Proof of a genuine transfer of decision-making authority to the tribunal secretary is required.
Conclusion: According to the Court, everything hinges on the arbitrators' conception and execution of their duties. The act of writing is the ultimate protection of intellectual control for certain people. Others can attain the same level of control without having written the first draught. It comes down to the arbitrators' honesty and professional conscience, which the parties have explicitly picked for these characteristics. The Court further points out that tribunal secretaries are frequently inexperienced young practitioners who are unlikely to impact the decision-making process.
The Court concludes that the Chairman's proofreading and review of the tribunal secretary's draught arbitral award were following the regulatory framework for tribunal secretaries' involvement set forth in the "Note to Parties and Arbitral Tribunals on the Conduct of Arbitration according to ICC Rules of Arbitration," and did not constitute an unlawful delegation of decision power. The Court also dismissed the contractors’ other complaints about the arbitral tribunal’s alleged lack of impartiality, lack of reasoning and lack of adversarial argument.
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