Facts
On April 14, 1978, the Hungarian company K. concluded a contract with the X. consortium for the construction of an integrated corn sugar and alcohol factory in Hungary. According to the contract, all disputes were to be settled by an arbitral tribunal in accordance with the Conciliation and Arbitration Rules of the International Chamber of Commerce in Bern.
On May 5, 1982, K. initiated arbitration proceedings against the X. consortium. Professor A. (appointed by the plaintiff) and Attorney B. (appointed by the defendants) were appointed as arbitrators, with Attorney C. as the chairman. After B. had declared his resignation on December 21, 1988, the defendants transferred their arbitrator's mandate on January 9, 1989 to Attorney D.
The arbitral tribunal in the new composition rejected the plaintiff's request on July 4/September 8, 1989 to repeat all procedural steps since June 25, 1982. The plaintiff then filed a constitutional appeal against this interim decision, which the Federal Court dismissed on June 14, 1990.
By arbitral award dated December 19, 1991, the arbitral tribunal largely rejected the plaintiff's claims and largely upheld those of the defendants. The plaintiff filed a constitutional appeal against this.
Considerations
The appellant argues that the arbitral tribunal was improperly constituted, both in its original and in the amended composition in which the contested decision was rendered. In particular, the first arbitrator appointed by the defendants, as their attorney, was neither independent nor impartial.
The Federal Court examines whether the allegation of lack of independence and impartiality of the arbitrators is admissible within the framework of the appeal proceedings against the arbitral award itself. It concludes that such grounds for rejection, which were known and asserted before the issuance of the…