ICDR International Arbitration / Conflict of Interest of the Former Arbitrator, Henri ALVAREZ, Esq. / Fasken Martineau Dumoulin Law Firm / Resignation of the Second Arbitrator
The renewed interest of the arbitration community on the issue of conflicts of interests is steadily increasing and offers unexpected but welcomed twists. The latest case comes from North America and concerns the ICDR Arbitrator Henri ALVAREZ, mentioned in our previous newsletters.
We had earlier drawn attention to the resignation on 9 December 2011, as an arbitrator, of Henri C. ALVAREZ, a Partner in the Canadian law firm, FASKEN MARTINEAU DUMOULIN. This firm has significant experience representing clients in matters involving the OHADA area. Mr. ALVAREZ had to resign from his functions as sole arbitrator in a matter due to strong suspicion concerning the existence of a significant conflict of interest not revealed to the parties. He has since then been summoned as an assisted witness on 14 June 2013 before the French Criminal Justice to answer charges of forgery and use of forgeries, especially regarding the statement of independence (see newsletter of 28 June 2013).
Following his resignation, his partial ruling (on responsibility) was surprisingly confirmed by the new arbitrator Michael LEE, appointed by the ICDR to adjudicate on reparation.
Michael LEE, Esq., the former managing partner of NORTON ROSE's Paris office and currently lawyer at the London law firm, 20 ESSEX Street, had surprisingly considered that the facts did not permit him to say that the Henri ALVAREZ, Esq. had resigned as arbitrator due to doubts concerning the existence of a conflict of interest.
In a dramatic twist, Michael LEE, Esq., appointed to conduct the arbitration procedure, himself resigned on Thursday, the 16th of August 2013. This once more buttresses the criticisms raised by observers against this abnormal arbitration procedure. This second resignation, coming four years after the start of the procedure and at a moment when the first arbitrator has been summoned by the French Criminal Justice as assisted witness (intermediary status between simple witness and formal accusation) underscores a serious dysfunction rocking the very foundations of international arbitration. Independence and impartiality, disclosure obligations, essential pillars of commercial arbitration, are nowadays being undermined by the inadmissible conduct of some arbitrators and arbitration centres. This resignation is most of all welcome because it reflects the primacy of justice over injustice.
Africa, and specifically the OHADA area in which arbitration is an indispensible tool for the settlement of commercial conflicts, must recognize these developments in favour of the effectiveness, in international commercial arbitration, of statements of independence and of disclosures of potential conflicts of interests.
In practice, the apparent independence and impartiality of the arbitrator is what guarantees the acceptability of the arbitral award. Any lack of independence and impartiality can substantially affect the appropriateness of enforcing an arbitral award. We fervently hope that these positive developments in the practice of international arbitration will usher in a similar evolution towards irreproachable arbitral practices within the OHADA territory, as is critical to the credibility of arbitration within OHADA's legal regime.