From 17 August 2009, the ICC Court has required arbitrators agreeing to serve in ICC proceedings to disclose details confirming their availability and their independence (see Legal update, ICC requests arbitrators to disclose details of availability and independence). The Secretariat of the ICC Court now sends each arbitrator a form entitled ICC Arbitrator Statement of Acceptance, Availability and Independence in which the arbitrator is requested to accept or decline an invitation to serve on a case. The arbitrator is also invited to provide additional information regarding his or her availability, including the number of cases in which they are already involved, and any foreseeable competing demands on their time in the upcoming 18 months.

With this new form, the ICC hopes to counter concerns related to the time and costs involved in conducting international arbitration proceedings, and to encourage arbitrators to reflect more carefully on their availability before accepting office. Whilst such an analysis of a prospective arbitrator's availability over the course of an 18 month period is unlikely to give a complete picture, it should certainly usher in a new degree of transparency in relation to their availability and overall workload. It still remains to be seen whether it will serve to assist in the general aim of resolving disputes within the prescribed time limits.

In SNF [France] v International Chamber of Commerce [France] (Cour d'appel, Paris 1e ch. (Section C), 22 Jan. 2009, case no. 07/19492), the Paris Court of Appeal upheld a decision dismissing a claim for damages brought by SNF against the ICC. SNF had been the unsuccessful party in an ICC arbitration seated in Belgian. The award ordered that SNF pay a sum of money. The Belgian courts later set aside the award on the basis that it violated EU competition law.

SNF brought proceedings against the ICC for, among other things, breach of contract. Its principal claim was that the ICC Court had failed properly to scrutinise the award and had failed to prevent an award being issued in contravention of Belgian public policy. It also claimed the ICC failed to respond to SNF's requests for advice concerning time limits for challenging the award under Belgian law, had granted unreasonable extensions of time during the arbitration and had incorrectly fixed the costs of the arbitration.

Moreover, SNF argued that the ICC's liability should be determined in accordance with the 1988 Rules, those in force at the time the arbitration agreement was concluded. The later 1998 Rules contained an exclusion of liability clause, whereas the 1988 Rules did not. Article 34 of the 1998 Rules provides that:

SNF also argued that even if the 1998 Rules did apply, the exclusion of liability clause was void under French law.

SNF's claims were dismissed at first instance, and the decision was affirmed by the Paris Court of Appeal. The Court of Appeal held that the applicable ICC Rules were those in force at the time the arbitration agreement was entered into, unless the parties had agreed otherwise. Here, the parties had agreed to apply the later 1998 rules in their Terms of Reference, in which the 1998 Rules were referred to nine times.

The Court of Appeal determined that the exclusion of liability in Article 34 of the 1998 Rules was void ab initio as it allowed the ICC to fail to perform its essential obligations under the "arbitration contract" that existed between the ICC and SNF. However, although the ICC was therefore not immune from liability, the court entirely dismissed SNF's claims for damages.

The Court of Appeal considered that the ICC had properly performed its duties. It had drawn the tribunal's attention to public policy issues and so had properly scrutinised the award. The ICC was under no obligation to advise the parties on the time limits for challenging awards, and regardless, SNF's application to the Belgian courts was not prejudiced by the delay. The extensions of time granted by the tribunal were not unwarranted, particularly in light of the fact that the proceedings were bifurcated, there were a total of five hearings and 30 written submissions were exchanged by the parties. Also, SNF had made no complaint about the extensions of time during the arbitration itself. Finally, the ICC had properly fixed the costs of the arbitration in accordance with the 1998 Rules.

This decision is of interest to practitioners and arbitrators alike, particularly given its unusually detailed examination of ICC procedures. It also underscores the significance of the Terms of Reference as a new agreement between the parties, and casts doubt on the ICC's ability to exclude liability under Article 34 of the ICC Rules.

In J&P Avax SA v Tecnimont SPA (Cour d'appel, Paris 1e ch. (section C), 12 Feb. 2009, case no. 07/22164), the Paris Court of Appeal set aside an ICC award delivered in December 2007 on the ground that the tribunal had not been properly constituted.

The appellant alleged that the chairman of the tribunal lacked independence given the existing relationship between the chairman's law firm and subsidiaries in the respondent's group of companies.

The chairman had disclosed a prior relationship with the respondent's group of companies when he was nominated in 2002, however he failed to update his disclosure statement. In 2007, the claimant raised questions about the chairman's impartiality, alleging that the chairman's law firm had previously represented a subsidiary of the respondent before the French courts and that it had advised the subsidiary on a fiscal matter. The chairman's law firm had also represented the respondent's parent company from 2002 to 2005, and had advised another subsidiary between 2005 and 2007.

The appellant unsuccessfully challenged the chairman's appointment before the ICC Court. The claimant continued to participate in the arbitration, albeit under protest. Shortly after the tribunal handed down its award, the chairman resigned, stating: "I do not deny that a party could perceive this situation as being incompatible with the requirement of independence."

The Court of Appeal held that the arbitrator was subject to a continuous obligation to inform the parties of any matter that could, in the reasonable view of the parties, influence the judgment of the arbitrator and that could affect his or her independence. The obligation arose out of the relationship of trust that is established between the arbitrator and the parties and such relationship must be preserved at all times. The chairman had failed to make full and accurate disclosures at the time he was nominated and failed to update his disclosure statement. He had therefore failed to comply with his obligation of independence, a failure which could not be excused by the fact that his firm was a large firm with thousands of lawyers globally.