Rejection of an Arbitrator due to Bias

Facts

The Swiss Pilots Association and Swiss International Air Lines AG are opposing each other in an arbitration procedure. The arbitral tribunal, consisting of three arbitrators, issued judgments in the same composition on July 15, 2002, and June 17, 2003. On April 29, 2005, the respondent filed a new complaint. The parties had agreed that the arbitral tribunal in the same composition should be competent for this purpose. However, since the arbitrator nominated by the appellant had resigned, she had to appoint a new arbitrator. The appellant's appointed Prof. X is rejected by the respondent as biased.

The respondent justified her request for recusal of June 11, 2005, in writing, stating that her lawyer had asked the arbitrator nominated by the opposing party after the opening of the first arbitral award in the summer of 2002 for advice on several points in the dispute with the appellant. The arbitrator had subsequently requested the delivery of legal documents and the two collective labor agreements (GAV) under discussion and received the desired documents. He had expressed himself on individual points over the phone, but had not been heard from again despite inquiries. However, he had published an extremely critical review of the first arbitral award.

Considerations

The Federal Court has dismissed a constitutional complaint against the rejection of an arbitrator due to bias. The appellant had claimed that the lower courts had violated Art. 18 IAC in conjunction with Art. 22 para. 1 lit. b and Art. 23 lit. c FJA, as they had wrongly affirmed the identity of the questions posed in the previous arbitration proceedings with the current ones.

However, the Federal Court found that the cantonal authorities had protected the rejection of the designated arbitrator due to the grounds for rejection under Art. 23 lit. c FJA. The designated arbitrator had publicly expressed himself on the questions at issue and had revealed a conclusive formation of opinion. This had created the appearance of bias and the risk of prejudice.

The Federal Court also found…