A subcontract was concluded on behalf of a German contracting authority between a contractor, the Italian company X (“Claimant”) and a subcontractor, the German company Z (“Respondent”). Following a disagreement between the parties, the dispute was submitted to an arbitral tribunal under the auspices of the ICC, which ordered the plaintiff to pay the due sums. The latter then brought an action for annulment before the Swiss Federal Tribunal (“SFT”).
On the one hand, it argued that the arbitral tribunal had violated its right to be heard by unilaterally modifying, and without justification, the expert’s mission, despite the existence of agreements between the parties on this subject.
The SFT recalls that the complaint alleging a violation of this right must not be used to provoke a review of the application of the law on the merits. It adds that an arbitral tribunal may refuse to have evidence submitted, without violating the right to be heard, if the evidence is not of a nature that alters a conviction. Finally, the SFT specifies that the arbitral tribunal cannot review an early assessment of a piece of evidence, the only exception being the extremely restrictive angle of public policy. The SFT considers that in the case at hand, the right of the parties to be heard was not violated, in particular since the arbitral tribunal has involved the parties in all stages of the investigation and that they were able to express themselves on this subject.
On the other hand, Claimant challenged the members of the arbitral tribunal for their lack of impartiality.
The SFT recalls that it is not bound by the decision made by the Court of Arbitration of the ICC rejecting this request, since the decision has been issued by a private body and could not be the subject of a direct appeal before the SFT. It adds that an arbitral tribunal must, like a State court, provide sufficient guarantees of independence and impartiality. An arbitrator may be challenged where external circumstances, objectively established, give the appearance that they may influence the judgment in favour of or to the detriment of a party and cause fear of arbitrator bias. The purpose is to guarantee the independence of the judge with respect of each of the parties. However, in this particular case, there is no concrete evidence to justify any arbitrator’s lack of impartiality.