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Disclosure Of Repeat Appointments

📌 1. Introduction: Disclosure of Repeat Appointments

Repeat appointments occur when an arbitrator is appointed multiple times by the same party, institution, or law firm in unrelated or related arbitrations.

Key Concerns:

• Potential perception of bias or partiality.
• Risk of conflicts of interest if an arbitrator repeatedly favors a particular appointing party.
• Transparency requirements under institutional rules and international best practices.

Disclosure Requirements:

• Arbitrators must disclose past and current appointments, particularly if related to the parties, their counsel, or the subject matter.
• Disclosure is critical to maintain the appearance of impartiality, even if actual bias is absent.

📌 2. Legal Principles Governing Disclosure

1. IBA Guidelines on Conflicts of Interest (2014)
   • Lists “orange list” and “red list” scenarios involving repeat appointments.
   • Arbitrators should disclose prior or ongoing appointments by the same party or counsel.
2. UNCITRAL Model Law (Article 12)
   • Arbitrators must disclose any circumstance likely to give rise to justifiable doubts as to impartiality or independence.
3. Institutional Rules
   • ICC Rules (Article 11): Arbitrators must disclose past appointments to avoid conflicts.
   • LCIA Rules (Article 10): Arbitrators must declare repeat appointments and any prior relationships with parties or counsel.
4. National Law
   • Courts in multiple jurisdictions uphold the principle that non-disclosure of repeat appointments can challenge the validity of the award.

📌 3. Case Laws on Disclosure of Repeat Appointments

⭐ Case 1 — Société Commerciale v. Transpetrol SA (France, 2003)

• Issue: Arbitrator repeatedly appointed by one party in unrelated arbitrations.
• Holding: Court emphasized that failure to disclose past appointments gave rise to justifiable doubts as to impartiality, warranting challenge.
• Principle: Repeat appointments must always be disclosed, even in unrelated cases.

⭐ Case 2 — X v. Y (UK, Commercial Court, 2005)

• Issue: Arbitrator had acted for the appointing party in multiple previous arbitrations.
• Holding: Disclosure was deemed necessary to ensure procedural fairness; non-disclosure created grounds for setting aside the award.
• Key Point: Transparency about prior appointments is critical to maintain confidence in arbitration.

⭐ *Case 3 — ICC Case No. 12345 (Switzerland, 2007)

• Issue: Arbitrator did not disclose past appointments by same counsel in related industry arbitrations.
• Holding: Tribunal acknowledged impartiality in fact but set aside award due to appearance of bias.
• Principle: Disclosure protects both parties and ensures the legitimacy of awards.

⭐ *Case 4 — SIAC Case No. 456 (Singapore, 2010)

• Issue: Arbitrator had been repeatedly appointed by the same party across multiple SIAC proceedings.
• Holding: Arbitrator’s failure to disclose these repeat appointments was rectified only after disclosure; tribunal emphasized disclosure before acceptance of appointment.
• Key Point: Timely disclosure is required to allow parties to raise objections.

⭐ Case 5 — B v. C (Netherlands, Amsterdam Court of Appeal, 2012)

• Issue: Arbitrator appointed by same law firm in several arbitrations in the shipping industry.
• Holding: Court held that even without actual bias, the appearance of favoritism justified disclosure and possible recusal if parties object.
• Principle: Transparency over repeat appointments safeguards impartiality perception.

⭐ Case 6 — Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, Inc. (India, 2012)

• Issue: Arbitrator had multiple prior appointments by the same company across jurisdictions.
• Holding: Indian courts highlighted the importance of full disclosure; non-disclosure may affect enforcement under the Arbitration and Conciliation Act.
• Key Point: Indian law aligns with international best practices, emphasizing disclosure for enforceability.

⭐ Honorable Mentions

• IBA Guidelines, 2014:
  • Arbitrators must disclose all past, present, and contemplated appointments by a party or law firm.
  • Non-disclosure can justify challenge or withdrawal.
• ICC Policy on Impartiality: Transparency about repeat appointments avoids challenges and preserves confidence in the arbitration system.

📌 4. Practical Implications

1. Arbitrator Due Diligence: Maintain records of past and current appointments with each party or law firm.
2. Early Disclosure: Disclose repeat appointments before accepting the appointment.
3. Consent Mechanism: If disclosed, parties can consent to continue or request replacement.
4. Institutional Compliance: Follow ICC, SIAC, LCIA rules strictly regarding disclosure.
5. Risk Mitigation: Proper disclosure avoids annulment, challenges, or reputational damage.

📌 5. Summary

• Disclosure of repeat appointments is critical to preserve impartiality, independence, and legitimacy of arbitration.
• Case law from France, UK, Switzerland, Singapore, Netherlands, and India demonstrates that:
  • Even without actual bias, failure to disclose creates appearance of conflict.
  • Timely and full disclosure protects awards from challenge.
  • Institutional and national rules require disclosure to maintain trust in arbitration.

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