An Arbitrator’s Lack of Cooperation Need Not Hold Up Award

The Swiss Supreme Court refused to set aside an award on the ground that a co-arbitrator had failed to attend the deliberation.

The co-arbitrator failed to attend without giving prior notice, but argued that the deliberation could not be held because the ICC was due to decide on the challenge of the chairman. The ICC subsequently rejected the challenge. Having received a new version of the draft award, reflecting the discussions at the deliberation meeting held without the recalcitrant co-arbitrator, the latter refused to comment on the draft and stated that he would not participate in a second deliberation meeting if the new draft was not withdrawn. The chairman refused to withdraw the new draft and the co-arbitrator did not participate in the meeting. The latter also failed to respond to an invitation to comment on the changes made to the draft award at that meeting. The final award was signed by the chairman and the other co-arbitrator.