Facts

Parties and contractual context

On 25 April 2001, B. Limited (Bermuda, seat in the United Arab Emirates) and the Iranian company A. concluded a gas sales and purchase contract (« Gas Sales and Purchase Contract », GSPC). In 2003, B. assigned the GSPC to C. Limited (British Virgin Islands, seat in the United Arab Emirates).

On 31 July 2014, an arbitral tribunal seated in London found A. liable for breach of its gas delivery obligations.

Subsequent arbitral proceedings

On 28 June 2018, B. and C. initiated new arbitral proceedings against A. before the Permanent Court of Arbitration (PCA) in Geneva, seeking damages for non-delivery of gas from 1 August 2014 onwards. The arbitral tribunal, composed of arbitrators Charles Poncet (appointed by the claimants), Klaus Sachs (appointed by the respondent) and Laurent Aynès (chairman), issued an incidental award on 5 May 2020 finding that the claimants had validly terminated the GSPC on 11 September 2018.

A. filed an application for annulment of this incidental award before the Federal Supreme Court (decision 4A_300/2020 of 24 July 2020), which declared the appeal inadmissible.

Recusal requests and revision

During the proceedings, A. requested the recusal of the chairman Laurent Aynès. The ICC Court of Arbitration ordered his recusal on 23 March 2023. Arbitrator Klaus Sachs resigned on 4 May 2023. A. then sought revision of the incidental award of 5 May 2020, citing doubts as to the independence and impartiality of Charles Poncet, based on statements made in a Geneva television programme broadcast on 31 August 2023 (« the Monologue »).

The Monologue contained virulent criticism of Muslims, including references to « pashas of Islamic virtue » and statements perceived as offensive to Muslims and Iranians. A. requested the recusal of Charles Poncet on 28 September 2023. The ICC ordered his recusal on 7 November 2023 (reasons given on 16 January 2024).

A. filed a new application for revision of the incidental award of 5 May 2020 before the Federal Supreme Court (case 4A_572/2023), citing the discovery of elements casting doubt on the impartiality of Charles Poncet. The Federal Supreme Court dismissed this application by decision of 11 June 2024.

Proceedings before the Federal Supreme Court

The Federal Supreme Court examined whether the ICC’s decision admitting the recusal of Charles Poncet bound the Federal Supreme Court in the context of a revision application based on Art. 190a(1)(c) PILA. It also analysed whether the ground for recusal had to exist at the time the incidental award was issued to justify revision.

Considerations

Jurisdiction of the Federal Supreme Court and admissibility of the revision application

The Federal Supreme Court recalls that international arbitral awards, including incidental awards binding the arbitral tribunal, are subject to revision under Art. 190a PILA. An incidental award binds the arbitral tribunal that issued it and may therefore be the subject of a revision application, unlike a mere procedural order. The revision procedure is governed by Arts. 77(2bis) and 126 FSCA, and if the application is granted, the Federal Supreme Court shall set aside the award and either refer the case back to the arbitral tribunal or make the necessary findings (Art. 119a(3) FSCA).

Effect of private decisions on recusal requests

The Federal Supreme Court states that decisions of private bodies (such as the ICC) on arbitrator recusal requests do not bind the Federal Supreme Court. It may indirectly review such decisions in the context of an appeal or a revision application based on an irregular composition of the arbitral tribunal (Art. 190(2)(a) PILA). This case law also applies to revision applications under Art. 190a(1)(c) PILA. The Federal Supreme Court relies on the facts established in the private body’s decision but is not bound by its legal reasoning. It examines whether the elements invoked allow a ground for recusal to be established under Art. 190a(1)(c) PILA justifying revision of the award.

Requirement that the ground for recusal existed at the time of the award

The Federal Supreme Court interprets Art. 190a(1)(c) PILA and concludes that the ground for recusal must have existed at the time the incidental, partial or final award subject to the revision application was issued. This interpretation is justified by:

  • the diligence requirement in the provision, which would be superfluous if the ground could arise after the award;
  • the ratio legis of Art. 190a PILA, which aims to prevent an award rendered by a non-independent or partial arbitral tribunal from standing, implying that the ground for recusal must pre-exist the issuance of the award;
  • the IBA Guidelines, which limit the duty of impartiality and independence of the arbitrator to the time of the final award;
  • the principle of legal certainty and the exceptional nature of revision, which must remain an extraordinary remedy.

The Federal Supreme Court…