SCC2013-2016有关仲裁员回避问题的案例 (一) 驳回回避请求的案例

更新时间：2017-11-27 14:06:20  张振安 临时仲裁ADA 编辑：lianluobu  点击次数：2580次

案例一：SCCarbitration 2012/002

 

申请人根据其律师偶然听到的仲裁员和被申请人律师之间的谈话（对话中仲裁员对申请人其他有关该争议的仲裁程序中的专家证据提出怀疑），请求被申请人任命的仲裁员回避。申请人的律师提交了一个测谎测试来证明他的证词。申请人随后请求整个仲裁庭回避，认为被申请人的仲裁员可能影响了其他仲裁员。

被申请人承认其律师和仲裁员之间有过谈话，但是仲裁员没有说过申请人所宣称的言论。被申请人也不接受测谎测试。被请求回避的仲裁员否认说过上述言论，并认为他和被申请人律师的谈话只是在咖啡机旁的闲谈而已。

SCC理事会驳回了这一申请。

 

The claimant challenged the arbitrator appointed by the respondent based on a conversation between the arbitrator and the respondent’s counsel,overheard by the claimant’s counsel, in which the arbitrator had questioned the credibility of the claimant’s expert evidence in other arbitral proceedings related to the dispute. The claimant’s counsel submitted a polygraph test in support of his witness statement. The claimant subsequently challenged the entire tribunal, arguing that the respondent’s arbitrator might have influenced the other arbitrators.

The respondent admitted that a conversation had taken place between the respondent’s counsel and the arbitrator, but that the arbitrator had not made the remark alleged by the claimant’s counsel.Respondent also objected to the admissibility of the polygraph test. The challenged arbitrator denied having made the alleged remark and stated that the conversation between him and the respondent’s counsel was merely small talk by the coffee machine. The SCC Board dismissed the challenge.

 

案例二：SCCarbitration 2012/148

 

申请人请求由被申请人任命的仲裁员回避，理由是仲裁员和被申请人律师的合伙人之一同属于一家专业公证机构，而仲裁员未根据《SCC规则》第14（2）条披露该情况。被申请人反对该回避申请，认为与回避相关的信息已经包含在仲裁请求中，而申请人因未能根据《SCC规则》在规定的15天期限内提交回避申请而放弃了该权利。此外，同一专业机构的会员身份也包含在《国际律师协会准则》的绿色清单中，这意味着从客观的角度来看，并不存在表面或实际的利益冲突。仲裁员没有对此回避申请作出评价。

SCC理事会驳回了这一申请。

 

The claimant challenged the arbitrator appointed by the respondenton the ground that the arbitrator belonged to the same professional body of public notaries as one of the partners of the respondent’s counsel, and that the arbitrator had failed to disclose this circumstance according to Article14(2) SCC Rules. The respondent opposed the challenge, maintaining that the information relevant for the challenge had been included in the Request for Arbitration, and the claimant had waived the right to make the challenge by failing to submit it within the stipulated 15-day time limit imposed by the SCC rules. Moreover, membership in the same professional body is included on the Green List of the IBA Guidelines, meaning that there is no appearance of or actual conflict of interest from an objective point of view. The arbitrator did not comment on the challenge. The SCC Board dismissed the challenge.

 

案例三：SCC arbitration 2013/112

申请人根据《SCC规则》第16（1）（iii）条请求在仲裁程序中由被申请人指定的替代仲裁员回避。该仲裁员表示他没有出席之前安排开庭，在同意重新安排开庭的情况下同意接受指定。申请人反对这种拖延，认为证人在新的开庭时间参加审讯会造成申请人的业务中断。

 

被申请人反对这一请求：（1）申请人没有根据《SCC规则》第15条请求仲裁员回避; （2）第16条只能在极端情况下由SCC理事会主动提出;（3）在任何情况下，重新安排审讯时间并不构成不可接受的延误;（4）该仲裁员回避可能会导致进一步拖延。回避请求被驳回。

 

The claimant submitted arequest under Article 16(1)(iii) of the SCC Rules to release a replacement arbitrator appointed by the respondent during the proceedings. The new arbitrator had disclosed that he would be unavailable during the previously scheduled hearing dates, and consented to the appointment subject to the hearing being rescheduled. The claimant opposed the delay, arguing that making witnesses available for the new dates would cause disruptions in the claimant’s operations.

 

Respondent opposed the request on numerous grounds: (1) the claimant had not challenged the arbitratoron the basis of Article 15 of the SCC Rules; (2) Article 16 can be invoked only by the SCC Board on its own motion and only in extreme cases; (3) in any event,rescheduling the hearing did not amount to an unacceptable delay; (4) releasing the arbitrator would likely cause even further delay. The request for release was dismissed.

 

 

案例四：SCC arbitration 2013/134

 

被任命时，首席仲裁员披露其曾经在代理仲裁申请人案件的律师事务所工作了30多年。他七年前就离开了该律所。被申请人以这些理由请求首席仲裁员回避，并补充说，申请人当时可能是该公司的客户——这意味着申请人实际上是该首席仲裁员的客户。被请求回避的仲裁员评论说，他并不记得在他担任律所合伙人期间申请人是该律所的客户，且申请人的两名代理律师是在该仲裁员离开后加入该律所的。首席仲裁员在接受指定时已经离开代理申请人案子的律师事务所7年了; 根据《国际律师协会指引》“橙色清单”第3.1条，这种情况的相关时限为三年。SCC理事会驳回了这一申请。

 

Upon being appointed, the chairperson disclosed that he had worked for more than 30 years at the law firm representing the claimant in the arbitration. He had left the firm seven years before the appointment at issue. Respondent challenged the chairperson on these grounds, adding that the claimant may have been a client of the firm at the time – meaning that claimant had been a de facto client of the chairman. The challenged arbitrator commented that he did not recall claimant being a client of the firm while he was a partner there, and the two lawyers representing the claimant had joined the law firm after the chairman had left. The chairman left the law firm representing claimant seven years prior to appointment; under Section 3.1 of the IBA’s Orange List, the relevant time limit for this circumstance is three years. The SCC Board rejected the challenge.

 

案例五：SCCarbitration 2013/180

 

申请人请求由被申请人选定的仲裁员回避，理由是该仲裁员和申请人的律师在地方法院的另一例待定案件中互为反方律师。在该诉讼争议案件中，申请人律师反对作为律师的该仲裁员在该案中收取的律师费。由于律师费用涉及到仲裁员的个人收入问题，申请人认为这在本案中可能会影响仲裁员的公正性和独立性。被申请人指出，非关联争议案件的代理费属于非关联方之间的争议，与当前的仲裁案件无关，且仲裁员在当前的争议中没有经济利益。没有迹象表明仲裁员与申请人的律师之间存在个人冲突。SCC理事会驳回了这一申请。

 

The claimant challenged the arbitrator appointed by the respondent on the basis that the arbitrator and claimant’s counsel were opposing counsel in another dispute pending in district court. In that dispute, the claimant’s counsel had objected to the legal fees charged by the arbitrator in his role as counsel. As the issue of fees concerned the arbitrator in his personal capacity,the claimant argued that it may undermine his impartiality and independence in the instant case. Respondent noted that the fees concerned an unrelated dispute between unrelated parties. There was no connection to the parties in the present arbitration, and the arbitrator had no economic interest in the present dispute. There were no indications of a personal conflict between the arbitrator and the claimant’s counsel. The SCC Board dismissed the challenge.

 

案例六：SCC arbitration 2014/104

 

申请人请求被申请人选定的仲裁员回避，原因是他曾向被申请人提供过法律咨询意见，接受被申请人选定委仲裁员存在利益冲突。被申请人反对这一回避申请，并解释说仲裁员大约七年前曾在不相关的事情上担任过其代理人，二人从那之后并没有联系。很久之前的代理行为并不影响其独立性，并不构成就该仲裁员公正性引起怀疑的合理理由。《国际律师协会指引》“橙色清单”第3.1.1条规定这种情况的时间限制为三年。被申请回避的仲裁员证实，他与被申请人的联系实质上是有限的，而且是多年前发生的。SCC理事会驳回了了这一申请。

 

The claimant challenged the arbitrator appointed by the respondent on the basis that he had provided legal advice to the respondent in the past, and that he had an interest in continuing to receive engagements from respondent. The respondent opposed the challenge,explaining that the arbitrator had represented respondent in unrelated matters some seven years ago, and has not been retained by the respondent since then.An engagement this far in the past cannot be seen to create any financial or commercial dependency, and does not give rise to justifiable doubts regarding the arbitrator’s impartiality. Paragraph 3.1.1 of the IBA’s Orange List sets the time limit for this kind of circumstance to three years. The challenged arbitrator confirmed that his contacts with the respondent had been limited in nature and taken place many years ago. The SCC Board rejected the challenge.

 

 

案例七：SCCarbitration 2015/025

 

被申请人对申请人任命的仲裁员提出回避，理由有三：（1）仲裁员的律师事务所与被申请人的律师共同参与过两个交易项目; （2）仲裁员和首席均为另一仲裁机构的仲裁员名单; （3）在仲裁员的律师事务所工作的律师以前曾和申请人的律师在一个律所工作。

申请人反对这一回避申请，解释说：（1）仲裁员的律师事务所和申请人的律师事务所在交易项目中是对立方; （2）被列入推荐的仲裁员名单不影响其公正性或独立性; （3）以前与申请人律师有联系的律师与仲裁员不在同一办公室工作，并与仲裁无关。原告还认为，该回避请求已失时效，因为被申请人没有在《SCC规则》要求的15天内提出。

 

仲裁员拒绝辞职并评论说：（1）她并不知情，也没有参与回避申请中提到的联合交易项目，且两家律师事务所在非关联交易中代表对立当事人，这并不影响仲裁员的公正性; （2）仲裁员被列入同一推荐仲裁员名单并不代表他们之间相互联系或相互熟识。

SCC理事会驳回了这一申请。

 

The respondent challenged the arbitrator appointed by the claimant on three grounds: (1) the arbitrator’s firm was engaged in two transactional projects with claimant’s counsel; (2) the arbitrator and the chairperson were both included on another arbitral institution’s list of arbitrators; (3)lawyers working at the arbitrator’s firm had previously worked for the same firm as claimant’s counsel.

 

The claimant opposed the challenge, explaining that (1) the arbitrator’sfirm and the firm of claimant’s counsel advised opposing parties in the transactional projects; (2) being included on the same list of recommended arbitrators does not affect impartiality or independence; (3) the lawyers who had previously been affiliated with claimant’s counsel do not work in the same office as the arbitrator and have no connection to the arbitration. The claimant also argued that the challenge was time-barred, as it was not made within the 15 days as required by the SCC Rules.

 

The arbitrator declined to resign and commented that (1) she was unaware and not involved in the joint transactional projects referenced in the challenge, and the fact that the two law firms represented opposing parties in an unrelated transaction does not affect the arbitrator’s impartiality; (2) being included on the same list of recommended arbitrators does not indicate that those listed are connected oreven acquainted with each other. The SCC Board dismissed the challenge.

 

案例八：SCC arbitration 2015/041

申请人请求被申请人任命的仲裁员回避，因为申请人的律师和仲裁员是在一个无关的法庭案件中互为反方律师。既然那样，仲裁员作为律师而收取的费用就成为一个核心问题；上诉法院大大减少了他主张的律师费用。由于该案中申请人的律师质疑了仲裁员主张的律师费用，申请人认为会影响到仲裁员的公正性。

 

仲裁员解释说，法院裁定的结果对他从客户那里获得的律师费没有任何影响，而且结果是他没有遭受影响。质疑反方律师的代理费用属于律师在法庭诉讼程序中正常的范围，不影响仲裁员在无关程序中的公正性。SCC理事会驳回了这一申请。

 

The claimant challenged the arbitrator appointed by respondent because the claimant’s counsel and the arbitrator were opposing counsel in an unrelated court proceeding. In that case, a central issue had been the fees charged by the arbitrator in his role as counsel; the court of appeal had significantly reduced the fees that he was to be reimbursed. Because claimant’s counsel had challenged the arbitrator’s compensation in this way, the claimant argued that the arbitrator’s impartiality may be affected.

 

The arbitrator explained that the outcome of the court proceeding had no effect on the compensation he received from his client, and that he suffered no financial loss as a result. Challenging the attorney’s fees of opposing counsel is within the usual scope of counsel’s role in court proceedings, and does not affect the arbitrator’s impartiality in an unrelated proceeding. The SCC board dismissed the challenge.

 

案例九：SCC arbitration 2015/093

 

申请人请求被申请人任命的仲裁员回避，理由是申请人的律师和该仲裁员在无关的法院诉讼中代表对立的当事人。被申请人指出，在一个无关案件中，对抗律师关系并不会削弱对仲裁员公正性的信心。被申请回避的仲裁员澄清说，他与申请人的律师之间的关系是学院式的且不会引起争议的，他们之间既没有友谊也并不敌对。SCC理事会驳回了这一申请。

 

The claimant challenged the arbitrator appointed by respondent on the ground that claimant’s counsel and the arbitrator represented opposing parties in unrelated court proceedings. Respondent stated that an opposing-counsel relationship in an unrelated case did not diminish confidence in the arbitrator’s impartiality.The challenged arbitrator clarified that the relationship between him and claimant’s counsel was collegial and uncontroversial,and that there was neither friendship nor antagonism between them. The SCC Board rejected the challenge.