Swimming in troubled Waters: The Derivation of Arbitrator’s bias through Social Media
Shubham Gandhi &Tanish Gupta[i]
Switzerland tops the list when it comes to conducting international arbitration and is considered one of the most pro-arbitration regimes of the world. The Swiss Courts seldom witness cases where an arbitral award is annulled. A general reluctance towards overturning the arbitral award prevails due to the conflict between finality and certainty of law, on the one hand, and doing justice, on the other. Contrary to this general tendency, the Swiss Federal Supreme Court, in its judgment of Sun Yang v. Agence Mondiale Antidopage (AMA) and Fédération Internationale de Natation (FINA), annulled the arbitral award passed by CAS, referring it back to CAS, on the sole basis of past tweets of one of the arbitrator that creates suspicion regarding impartiality of one of the arbitrator.
The judgment holds paramount importance as it develops a novel jurisprudence with regards to questioning the biases of the arbitrator and exceptionally takes into consideration the social media while deciding upon the bias of the arbitrator. The author(s) in this piece attempt to highlight how the judgment sets two important precedents. Firstly, by easing the “duty of curiosity” on the parties and Secondly, by bringing the realm of an arbitrator’s social media activity under the lens of corroborating factors to analyse bias.
On the unfortunate evening of 4 September 2018, the delegates of International Doping Test and Management, on behalf of Fédération Internationale De Natation (“FINA”), went to the home of Sun Yang, a Chinese athlete to collect samples for an unannounced doping test. After providing two blood samples but before any urine sample could be collected, Sun Yang noticed a doping control assistant taking his pictures. The athlete further noted that the certification provided by the staff is insufficient. Owing to such inappropriate behaviour and discrepancy, the urine sample could not be collected and the athlete demanded his blood samples back. An intense dialogue followed leading to the breaking open of blood samples by the security guard at the instruction of Sun Yang. Subsequently, Sun Yang was held for violation of FINA Doping Control Rules by the World Anti-Doping Agency (WADA). But, on 3 January 2019, observing the irregularity on part of the staff, the FINA Anti-Doping Commission cleared the athlete holding his conduct not in violation of Anti-Doping Rules. The commission held the conducted doping test invalid and void. WADA appealed the commission’s decision to CAS that resulted in imposition of an eight-year ban on Sun Yang from competitive swimming.
The panel of CAS, who passed the award on 28 February 2020, was chaired by former Italian government minister Franco Frattini. The concerned chair has previously, in 2018 and 2019, took it to twitter to raise his voice against the animal cruelty prevailing in China. In one of his tweets, the learned chair further went on to label Chinese as “Old yellow-face sadic”. Based on these tweets, the arbitral award was challenged before the Swiss Federal Supreme Court who, in its judgment dated 22 December 2020, annulled the arbitral award.
Precedence to broaden the already broadened umbrella of arbitrator bias?
The aforementioned tweets in Sun Yang’s matter, which constituted the basis for challenging the award existed prior to the conclusion of the arbitration proceeding but were noticed only after passing of the arbitral award. The federal court, taking into consideration earlier precedent and reading them in light with new amendments made in The Swiss Private International Law Act (PILA), held that an application for revision of award must be filed within 30 days of discovery of new grounds. The court noted that Sun Yang learned about the existence of the tweet on 15 May 2020 and subsequently filed an application on 15 June 2020, fulfilling the period of limitation. This is in consonance with Article 190a of PILA wherein application must be filed within 90 days after discovery of new grounds.
Dealing with the issue of the extent of research to be conducted by the parties, the court reiterated the age old principle of “Justice must not only be done, it must be seen to be done” and adopted the objective test, laid down by ECHR, which states that a slight appearance of bias on the part of arbitrator from the perspective of reasonable third person will be enough to disqualify the arbitrator. Till this point, the judgment simply follows the prevailing practices.
The reasoning of the Swiss Federal Supreme Court becomes crucial and sets an important precedent on two aspects, namely, “duty of curiosity” and “past opinion of the arbitrator” in the light of social media.
A. The Duty of Curiosity
The parties are required to exercise reasonable diligence, known as “curiosity”, to uncover the grounds that may lead to partiality on the part of the arbitrator. The duty of curiosity embarks during the arbitral proceedings. This rule is to discourage parties who may hunt for facts that hint towards impartiality of arbitrators after the passing of an arbitral award against them. The contention of the respondents in the present case is that had it not been lack of curiosity on part of the applicant, the applicants would have discovered the contentious tweets with simple search as they were always available on the twitter account or rather public twitter account of the arbitrator. As against this argument, the court artfully rests its decision on the concept “curiosity” distancing itself from the wider ground of “possibility”.
“So the mere fact that information is freely accessible on the internet does not mean ipso facto that the party, which would not have been aware of it notwithstanding its research, would necessarily have failed in its duty of curiosity. In this regard, the circumstances of the specific case will always remain decisive.”
The court further held that;
“Even assuming that we can qualify, once and for all, some of them as ‘mainstream social media’, it would still be necessary to circumscribe the extent of the duty of curiosity over time. At a time when some people frequently use or even abuse certain social media, in particular by publishing countless messages on their Twitter account, it would be advisable, if necessary, not to be too demanding of the parties.”
Upholding the applicant’s submission, the court observed that though the tweets were available all the time, doing a search using the arbitrator first name and last name would not have necessarily revealed the concerned tweets. The duty of curiosity is not absolute and unlimited, and therefore, relieving the prospective parties to a dispute from an unreasonable burden.
B. Past Opinion of the arbitrator
The General Standard 3 (“GS”) of IBA guidelines laid down that , conditions falling in the Green list, “could never lead to disqualification under the objective test set out in G2” and“need not be disclosed”. The provision 4.1 laid down in Green list, is pertaining to previously expressed legal opinion and it states that:
“4.1.1 The arbitrator has previously expressed a legal opinion (such as in a law review article or public lecture) concerning an issue that also arises in the arbitration (but this opinion is not focused on the case)”.
The guidelines does not recognise past opinion of arbitrators as a ground of disqualification, yet the federal court, ignoring the guidelines, makes the past opinion expressed on a less formal platform which was made prior to the arbitration proceedings, as a ground of annulment of the award. The federal court referred to guidelines in its decision “although not having binding character, they still hold value in international arbitration disputes”. The court recognised the guideline 2(b) of IBA which provides for the arbitrator to decline to accept or continue with the proceedings if “facts or circumstances exist, or have arisen since the appointment, which, from the point of view of a reasonable third person having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to the arbitrator’s impartiality or independence” but failed to take into account the provision 4.1 which became problematic on many fronts. The court made the tweet the sole basis of annulling CAS award and did not take into consideration the dispute on merit.
Jean Kalicki, in the 2012 blog post, considered IBA Guidelines on Conflicts of Interest in International Arbitration and envisaged the potential challenges which “virtual relationship” on host of social media networks such as Facebook, twitter, and LinkedIn may pose to the impartiality and independence of the arbitrator. The post includes certain recommendations for the potential arbitrators to consider for avoiding unnecessary conflict.
The present case goes beyond the idea of “virtual relationship”. The Court noted that the cause advocated by the arbitrator is not problematic; rather, extremely violent terms used by the arbitrator against Chinese individuals are problematic. The challenge to impartiality arises not on the basis of virtual relationship, but instead, on the basis of personal opinion of the arbitrator posted by him on his social media handle, twitter. It must not be ignored that the tweets were posted before the initiation of arbitral proceedings.
The judgment stirred up a debate as to what is the true extent of judging impartiality among arbitrators in an arbitration proceeding. The judgment touches upon a grey area of impartiality and freedom of speech and expression of arbitrators. It comes into dispute at the instance when it chooses to reconstitute the arbitration panel for the impartiality of one of the arbitrators. This impartiality is implied not from the "virtual relationship" of parties but from the expression of thought of the arbitrator on "virtual platform". The fact that every individual has his/her own thought process, opinions and convictions is beyond denial. Holding an arbitrator bias on the basis of his personal convictions made even prior to initiation of arbitral proceedings is unnecessary extension for seeking impartiality.
Social media like twitter is an informal platform where a person can quite freely express their opinion. With the opportunity to put forward one’s opinion comes another opportunity to view other persons’ opinions. While the court conveniently opined that everything that is available may not necessarily be reasonably searchable, relieving the parties from unlimited burden of duty of curiosity, it observed that arbitrators cannot express everything they think on the internet without having regard to claims of impartiality. The logical extension of the Court’s observation is that the arbitrator, even when they do not act in the capacity of an arbitrator, cannot be allowed to express anything in strong terms, therefore, imposing an unreasonable burden on the arbitrator to be extremely cautious of whatever they say. Though the Court stated that arbitrators can express their views, it, at the same time, extended the limitation on arbitrators, restricting freedom of speech and expression of prospective arbitrators.
The consequences of the judgment are yet to be seen but what can be reasonably apprehended is that the judgment opens an undiscovered dimension for challenging arbitral award. This may lead to counsels unnecessarily hunting for material which can be linked, though remotely, to the impartiality of the arbitrator.
[i]Shubham Gandhi and Tanish Gupta are third year and second year law students at Dharmashastra National Law University, Jabalpur.