SCC2013-2016有关仲裁员回避问题的案例 （二）接受回避申请的案例

更新时间：2017-11-27 16:18:56  张振安 临时仲裁ADA 编辑：lianluobu  点击次数：2022次

4.2.1. SCC arbitration 2013/139

 

被申请人请求申请人任命的仲裁员回避，理由是该仲裁员在另外一起被申请人参与的正在进行的仲裁案件中担任代理人（尽管不是当事人）。在该平行仲裁过程中，仲裁员对抗被申请人的行为，并可能在交叉质证过程中面对被申请人的员工。申请人和请求回避的仲裁员确认，这两起仲裁涉及到一些相关问题，并承认有重叠的可能性。SCC理事会接受该回避请求。

 

The respondent challenged the arbitrator appointed by the claimant based on the arbitrator’s participation as counsel in another ongoing arbitration involving the respondent, although not as a party. In that parallel proceeding, the arbitrator advocated against the actions of respondent, and was likely to face the respondent’s employees incross-examination. The claimant and the challenged arbitrator confirmed that the two arbitrations involved some related issues, and admitted that there was a possibility of some overlap. The SCC Board sustained the challenge.

 

4.2.2. SCCarbitration 2013/192

 

被申请人请求首席仲裁员回避，理由是之前申请人的律师事务所请他担任过好几次专家证人(在五年内担任过三次），而且他作为专家证人获取丰厚报酬。最后一次作为专家证人因为时间很近，因此他们之间的关系可以视为仍将持续。此外，申请人认为，首席在接受任命时未能披露这些情况应该视为一个加重情节。申请人回答说，他的公司和首席之间没有正在进行的咨询关系，也没有经济依赖关系，因为这个首席是前法官，所以他担任各个律师事务所的专家和顾问并不奇怪。SCC理事会接受了该回避请求。

 

The respondent challenged the chairperson on the basis that he had served as an expert witness for claimant’s law firm several times in the past –three times in the past five years – and that he had received significant fees for these assignments. The last of the assignments had been so recent that the relationship could be viewed as ongoing. Moreover, claimant argued,the chairman’s failure to disclose these circumstances when accepting the appointment should be seen as an aggravating factor. The claimant responded that there was no ongoing consultancy relationship and no economic dependency between his firm and the chairperson. Because the chairperson was a former judge, it was unsurprising that he would be engaged as an expert and consultant by various law firms. The SCC Board sustained the challenge

 

4.2.3. SCC arbitration 2014/169

争议涉及到双边投资协定（BIT）的投资仲裁。在该争议中，申请人（即投资者）指称被申请国实施的立法行为和监管措施违反了双边投资条约规定的义务; 被申请人否认了这些指控。

被申请国以下列理由请求申请人选定的仲裁员回避：仲裁员在另一起投资仲裁中担任投资方的代理律师，他的观点与当前仲裁被申请国的立场相对立。本仲裁案件中有利于被申请国的裁决会损害仲裁员委托方在另一起仲裁中的利益。虽然这两个仲裁是无关的，但是这些重叠的问题使得仲裁员在这个争议上存在个人和财务上的利害关系。

 

申请人提出反对意见，认为被申请人在本次仲裁中的抗辩完全不同于先前由仲裁员担任投资方代理律师的意见，申请人进一步认为，没有任何规定阻止个人在相似但无关的仲裁中担任代理律师和仲裁员。该仲裁员评论说，他作为代理律师和仲裁员的职责并不相互冲突，因为他作为代理律师参与的仲裁案件与本起仲裁中所涉的问题不同。SCC理事会接受了该回避请求。

The dispute arose out of abilateral investment treaty (BIT). In the dispute, the claimant investor alleged that the legislative acts and regulatory measures implemented by the respondent state violated its obligations under the BIT; respondent denied the allegations.

 

The respondent state challenged the arbitrator appointed by the claimant investor on the following grounds: The arbitrator acted as counsel for the investor in anotherinvestor-state arbitration, where he advocated a position contrary to respondent’s defense in the present arbitration. A decision favorable to respondent in this arbitration would be prejudicial to the interests of the arbitrator’s clients in the other arbitration. Although the two arbitrations were unrelated, the overlapping issues give the arbitrator a personal and financial stake in this dispute.

 

The claimant opposed the challenge, arguing that the respondent’s defenses in this arbitration were completely different than the defenses advanced in the case where the arbitrator acted as counsel for the investor. The claimant further maintained that there is no rule preventing individuals from serving as counsel and as arbitrator in similar but unrelated arbitrations. The challenged arbitrator commented that his duties as counsel and as arbitrator did not conflict with each other, as the issues in the arbitration where he acted as counsel were different from the issues in this arbitration. The SCC Board sustained the challenge.

 

4.2.4. SCC arbitration 2015/064

被申请人请求申请人任命的仲裁员回避的理由是：（1）他和申请人的律师在另一起争议中是共同代理律师，另一方为被申请人的律师;（2）他曾多次接受申请人代理律师的选定出任仲裁员，被申请人强调，仲裁员在接受任命时未能披露这些情况是一个加重情节。总之，这些情况足以在本仲裁案件中对仲裁员的公正性和独立性产生了合理怀疑。

 

申请人反对这一回避申请，解释说其律师和仲裁员在所提到的争议中是代表不同的当事人，而不是共同代理律师。关于缺乏披露的问题，申请人认为被申请人代理律师了解仲裁员的代理事实。被申请回避的仲裁员证实，严格意义上他和申请人律师并不是共同代理律师关系，并解释说，申请人律师在过去的三年间只任命过他两次。仲裁员还表示，他已经告知了被申请人的律师与他有关的委托事实。SCC理事会接受了该回避请求。

 

The respondent challenged the arbitrator appointed by the claimant on the grounds that (1) he was co-counsel with the claimant’s counsel in another dispute, with the respondent’s counsel opposing them, and (2) he had received repeated arbitrator appointments from the claimant’s counsel. The respondent also argued that the arbitrator’s failure to disclose these circumstances when accepting the appointment was an aggravating factor. Taken together, these circumstances raised justifiable doubts regarding the arbitrator’s impartiality and independence in the present proceeding.

 

The claimant opposed the challenge, explaining that claimant’s counsel and the arbitrator represented different parties, and were not co-counsel, in the referenced dispute. Regarding the lack of disclosure, claimant stated that the arbitrator’s assignments were known to respondent’s counsel. The challenged arbitrator confirmed that he was not strictly co-counsel with claimant’s counsel, and explained that he had been appointed by claimant’s counsel only twice in the last three years. The arbitrator also stated that he had informed the respondent’s counsel about his related assignments. The SCC Board sustained the challenge.