Case Numbers: 4A_288/2023 and 4A_572/2023 (11 June 2024)
Request for revision of interim award based on subsequent ICC disqualification of two arbitrators refused
In two recent French-language decisions both rendered on 11 June 2024 and slated for official publication, the Swiss Supreme Court dismissed two requests for revision filed by NIOC against a US$32 billion ICC interim award based on the successive disqualifications by the ICC of two of the arbitrators in the underlying arbitration for circumstances that postdated the award.
The Supreme Court held, in both decisions, that, to justify the revision of an award under article 190a(1)(c) of the Swiss Private International Law Act (PILA), the ground for challenge of an arbitrator must have existed at the time of the issuance of the award. The occurrence of a ground for challenge of an arbitrator after the award was rendered does not, of itself, constitute a ground for revision of the award.
Furthermore, when the circumstances relied upon as a ground for revision of an award are opinions expressed by an arbitrator after the issuance of the award that may reveal a bias against a party or a community, the party requesting the revision bears the burden of proving that the ground for challenge of the arbitrator (that is, the bias) already existed at the time the award was rendered.
In the first decision, the Supreme Court found that almost all the circumstances relied upon by NIOC in relation to the first arbitrator postdated the award and that the only two circumstances which predated the award did not justify its revision.
In the second decision, the Supreme Court found that NIOC had failed to establish the existence of any long-standing bias of the second arbitrator towards Iranians, Muslims or the practice of veil-wearing, at the time of the issuance of the award. (Decisions 4A_288/2023 and 4A_572/2023 (Swiss Supreme Court) (11 June 2024).)
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