EHRM, 20-05-2021, nr. 5312/11

Tijdens een arbitrageprocedure blijkt dat een van de arbiters de voormalige vice-president is van de moedermaatschappij van de onderneming waarmee de klagende onderneming een geschil heeft, en dat deze arbiter de moedermaatschappij bovendien als advocaat in andere zaken bijstaat. Het EHRM oordeelt dat de klagende onderneming niet vrijwillig en openlijk afstand heeft gedaan van het recht op een onpartijdige arbiter. In dit geval was gerede twijfel mogelijk over die onpartijdigheid, zodat art. 6 lid 1 EVRM is geschonden.

Lack of objective impartiality of an arbitrator, top official and counsel of the parent entity of the applicant's opponent company in related civil proceedings. No unequivocal waiver by the applicant of the right to have its dispute settled by an impartial body in voluntary arbitration proceedings

[…]

Turning to the analysis of the merits of the applicant's complaint, the Court considers at the outset that, for the purposes of the examination of the present case, establishing whether or not N.I.'s impartiality was tainted is not dependent on the public or private nature of ENEL and ENELPOWER. What is at stake is in fact whether the arbitration proceedings to which the applicant was a party afforded the safeguards provided for under Article 6 § 1 of the Convention, namely in view of the alleged lack of impartiality of one of the arbitrators. In this regard, what matters are the relationships between ENEL and ENELPOWER (see paragraphs 6 and 9 above, and 148 and 151 below), which are independent from the issue of their public or private nature. The Court will therefore not dwell any further on the issue.

As to the subjective aspect of impartiality, the Court finds that there is no evidence in the present case to suggest any personal prejudice or bias on the part of N.I.

With regard to the objective test, it must be determined whether, apart from N.I.'s conduct, there are ascertainable facts which may raise doubts as to his impartiality.

As to the Government's contention that the applicant had been well aware of N.I.'s professional links with ENEL, the Court reiterates that it has already rejected this argument when dealing with the applicant's waiver (see paragraph 140 above).

The Court notes that it is not disputed by the parties that N.I. had been Vice-Chairman and member of the Board of Directors of ENEL from June 1995 to June 1996. It is also an undisputed fact that the formal invitation to participate in the project was sent by the applicant to ENEL on 12 February 1996, whereas ENEL's first positive reply was sent on 29 February 1996 (see paragraphs 6 and 7 above). In this regard, the Court will not speculate as to N.I.'s effective knowledge of the ongoing negotiations. However, the Court notes that all negotiations concerning the business project, including the 1999 preliminary agreement, were conducted between ENEL and the applicant (see paragraph 8 above).

In this regard, the Court reiterates that even appearances may be of a certain importance (see paragraph 134 above). It would therefore note that, given the importance and the economic stakes of the business project, N.I.'s senior role in the entity which had conducted the first negotiations and whose subsidiary ENELPOWER would later oppose the applicant in the arbitration proceedings, seen from the point of view of an external observer, could legitimately give rise to doubts as to his impartiality.

As to N.I's role in parallel proceedings, the parties do not disagree on the fact that N.I. had been the lawyer of ENEL in some domestic sets of civil proceedings. It was N.I. himself who declared this before the Rome District Court (see paragraph 26 above). In this regard, the Court notes that it is a fact that N.I. had been ENEL's lawyer in a set of civil proceedings concluded by a judgment of the Court of Cassation of 27 November 2001, at a time when the parties had already appointed their arbitrators.

It is true, as the Government argued, that in the said dispute N.I. was the counsel of ENEL and not of ENELPOWER and that the latter had been created, as a separate entity from ENEL, in 1999. However, the Court notes that ENELPOWER was at the time wholly controlled by ENEL, which held 100 % of its share capital. Moreover, when the civil dispute had started, ENELPOWER was still an internal division within ENEL.

The Court notes that Legislative Decree no. 40 of 2 February 2006 (see paragraph 40 above) radically amended Article 815 of the CCP and the grounds for disqualification of arbitrators, providing for a strengthening of the principles of independence and impartiality in arbitration, to an extent similar to ordinary courts of law. In particular, new Article 815 § 1 (5) indicates as a reason for disqualification the fact that the arbitrator regularly advises a party to the arbitration proceedings or, inter alia, the company that controls it. The Court notes with interest the change in the law, which provides for clearer and, if applicable, wider guarantees against a lack of impartiality in the context of arbitration proceedings, such that, if the case had been domestically adjudicated after this reform the outcome might have been different.

To conclude, having regard to N.I.'s role as Vice-Chairman and member of the Board of Directors of ENEL between 1995 and 1996 and his role as lawyer for ENEL in at least one dispute which overlapped with the arbitration proceedings, the Court is of the view that N.I.'s impartiality was capable of being, or at least appearing, open to doubt and that the applicant's fears in this respect can be considered reasonable and objectively justified.

There has accordingly been a violation of Article 6 § 1 of the Convention.