In <span class="news-text_italic-underline">Telecom Italia v Opportunity (Appeal No 24-16.719)</span>, the French Court of Cassation upheld a decision of the Paris Court of Appeal setting aside an arbitral award on the grounds that reasonable doubts existed as to the independence of the president of the arbitral tribunal.
The dispute arose from settlement agreements concluded in 2005 between Telecom Italia and Opportunity in relation to investments in the Brazilian telecommunications sector. The agreements contained an arbitration clause providing for arbitration under the rules of the International Chamber of Commerce (“<span class="news-text_medium">ICC</span>”). In 2012, Opportunity commenced ICC arbitration seated in Paris.
During the course of the arbitration, Vivendi acquired a significant shareholding in Telecom Italia and became involved in its corporate governance. After becoming aware of this development, Opportunity requested that the arbitrators update their declarations of independence. The president of the tribunal subsequently disclosed that her law firm maintained an ongoing professional relationship with Vivendi.
In 2016, the arbitral tribunal issued an award dismissing all of Opportunity’s claims. Two years later, in 2018, the ICC Court upheld a challenge against the president of the tribunal. Opportunity then applied to the Paris Court of Appeal to set aside the award. In a decision dated 2 May 2024 (<span class="news-text_italic-underline">No 21/08610</span>), the Court of Appeal granted the application, finding that the circumstances gave rise to reasonable doubts concerning the arbitrator’s independence.
The Court of Appeal relied on a number of objective factors, including the significant capital links between Vivendi and Telecom Italia during the arbitration, Vivendi’s clear interest in the outcome of the proceedings and the repeated professional engagements between Vivendi and the arbitrator’s law firm.
Telecom Italia appealed to the Court of Cassation, arguing that these elements were insufficient to establish a lack of independence, particularly in the absence of any finding that the arbitrator had been aware of the relevant economic links or had personally worked on matters involving Vivendi.
The Court of Cassation dismissed the appeal. It reaffirmed that arbitrator independence must be assessed by reference to an objective standard, based on specific and verifiable facts capable of affecting the arbitrator’s freedom of judgment and of giving rise to reasonable doubts in the minds of the parties. Such facts may include personal, professional or economic connections, even where those links are indirect and involve a third party with an interest in the arbitration.
Applying that test, the Court held that the Court of Appeal had been entitled to conclude that the economic relationship between Vivendi and the arbitrator’s law firm constituted an objective conflict of interest. As a partner in the firm, the arbitrator had an economic interest in the firm’s profitability and in maintaining a significant client relationship. These circumstances were sufficient to create reasonable doubts as to her independence, irrespective of whether she had actual knowledge of those links or of Vivendi’s interest in the arbitration.
<span class="news-text_medium">Case:</span> <span class="news-text_italic-underline">Telecom Italia v Opportunity (Appeal No 24-16.719)</span>, French Court of Cassation, 21 January 2026 (decision available in French).
