<center><span class="news-text_italic-underline">Orico General Trading LLC and Nokia Networks France, ICC Case No. 25591/AYZ</span></center>
Orico, a UAE company, sought to set aside an ICC award made in favour of Nokia, a French mobile company. Its application relied on three grounds.
Arbitrator’s Independence and Impartiality
One day before the award was issued, arbitrator “F” disclosed an appointment as counsel for the National Iranian Oil Company (“<span class="news-text_medium">NIOC</span>”) in an unrelated arbitration.
Orico argued NIOC was an interested third party and the influence of the Iranian authorities threatened the integrity of the proceedings.
The court rejected this challenge. It held NIOC was not an interested third party in the arbitration and Orico had failed to establish any convergence of interests between NIOC and Nokia. The challenge therefore did not demonstrate the necessary alignment of interests linking the arbitrator, a party to the proceedings and the relevant third party.
Orico also maintained recognising the award would breach international public policy. It alleged threats and pressure directed at its witnesses during the arbitration had undermined equality of arms and its right to a fair trial.
Nokia argued that Orico could not rely on those allegations because its counsel had not raised them during the arbitration. The court held the failure to report the threats at that stage did not make the ground inadmissible.
Nevertheless, the court rejected the challenge on its merits. The tribunal had already given serious consideration to the alleged threats and introduced protective measures, including a confidentiality ring. The court concluded that those measures had safeguarded Orico’s procedural rights.
Finally, Orico argued the tribunal had denied it an opportunity to respond to new allegations advanced by Nokia. The court dismissed this ground, finding that Orico had been able to present its legal position by email. Orico had not established that the tribunal’s decision rested on grounds that had not been open to adversarial debate between the parties.
The judgment is significant in two respects. First, a challenge to an arbitrator’s independence and impartiality based on an appointment in separate proceedings requires evidence of a genuine convergence of interests, rather than reliance on the appointment alone. Second, allegations of witness intimidation must be considered by reference to their effect on equality of arms and the protective measures implemented by the tribunal during the arbitration.
