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A.J. Jawad* Mediation received statutory recognition in India in 2002, when the Code of Civil Procedure was amended to include section 89 which mandated the referral of pending civil cases to any of the five Alternative Dispute Resolution mechanisms mentioned therein. Even prior to section 89, there did exist a reference to mediation under section 30 of the Arbitration and Conciliation Act, 1996, though it was only recommendatory in nature. Section 89 would have also been a dead letter but for the judgment of the Supreme Court in what is commonly known as the Afcons’ Case which created a strong framework for referral to ADR. The conundrums that existed in the wording of section 89 were also clarified by the Supreme Court in this case. Starting from 2005, court-annexed mediation centers started coming up in various High Courts. Lawyers were trained in mediation through experts both foreign and domestic. In 2005 the Supreme Court of India formed a committee called as the “Mediation and Conciliation Project Committee” (MCPC) which started aggressively promoting the use of mediation as part of the case management process in courts and organized training programs in the High Courts and District Courts. Guidelines were framed for 40-hour mediation training programs and indigenous trainers were trained and entrusted the job of conducting the training programs. The Afcons’ case in 2010 gave a much-needed impetus to the use of mediation under the court-annexed programs. While court-annexed mediations have become ubiquitous in many High Courts and some District courts, mediation in the pre-litigation stage still remains a distant dream in spite of the sprouting of private institutions offering mediation services. New legislations such as the Commercial Courts Act, 2015, which was amended in 2018 to include section 12A mandating pre-litigation mediation, did not have the desired effect. Provisions under the Companies Act, 2013, recommending mediation remain ineffective and there are hardly any referrals by the National Company Law Tribunals. The Ministry of Corporate Affairs created a pool of mediators by conducting its own training programs. But their services remain mostly under-utilized, if not un-utilized. The amended Commercial Courts Act came with its own drawbacks. Apart from the failure of most courts to operationalize the pre-litigation mediation mandate, the provision itself suffers from some inherent lacunae, primary being the entrustment of the mediation exclusively to the National and State Legal Services Authorities who do not have the resources. More importantly, such a mandate does not fit into their raison d\’être. Pre-litigation mediation, notwithstanding its distinct advantages like time and cost effectiveness, is yet to gain the traction and acceptability as a go-to option before resorting to the conventional, time and cost intensive systems like litigation or arbitration. The reason is obvious – mediation is yet to be professionalized in India. For pre-litigation mediation to become the go-to system of first resort, there is a need to have a pool of professional mediators whose skill and qualifications would be impeccable. Unfortunately, India still suffers from a lack of understanding of the fine nuances and skills that go into the mediation process. To understand how mediation is perceived, notwithstanding the various developments that have taken place in India, we can, for instance, have a look at Rule 4 of the Companies (Mediation and Conciliation) Rules, 2016 that prescribes the qualification of panel of mediators and conciliators to be constituted under section 442 of the Companies Act: Rule 4. Qualifications for empanelment.— A person shall not he qualified for being empanelled as mediator or conciliator unless he — (a) has been a Judge of the Supreme Court of India ; (b) has been a Judge of a High Court; or (c) has been a District and Sessions Judge ; or (d) has been a Member or Registrar of a Tribunal constituted at the National level under any law for the time being in force; or (e) has been an officer in the Indian Corporate Law Service or Indian Legal Service with fifteen years’ experience; or (f) is a qualified legal practitioner for not less than ten years; or (g) is or has been a professional for at least fifteen years of continuous practice as Chartered Accountant or Cost Accountant or Company Secretary; or (h) has been a Member or President of any State Consumer Forum; or (i) is an expert in mediation or conciliation who has successfully undergone training in mediation or conciliation.(emphasis supplied). Even the rules framed by the High Courts suffer from the same lacuna. Rule 5(1) of The Tamil Nadu Mediation Rules, 2010 for instance is almost in pari materia with the Rule 4 ibid. and states under Rule 5(2) as follows:  (2) A person other than those specified in sub-rule(i), for being a person, empanelled as a mediator, should have undergone the training in the Centre or shall be a member of any institution recognized by the High Court as experts in mediation and training mediators. It can be seen from the above that the qualification of “training and expertise in mediation” is given the least priority for empanelment as a mediator. This shows a lackadaisical approach to mediation based on the erroneous premise that it is only an ad hoc process that can be conducted by any one, even without any training in the process skills. Such an approach to mediation is also evident from the Supreme Court ruling in Salem Advocate Case where it was held that it is not necessary for lawyers and judges to undergo training in mediation. It is a paradoxical situation where, on the one hand court-annexed mediation training programs are conducted with great gusto and on the other, the regulatory framework pays scant regard to the need for training and process expertise in mediation.  THE WAY FORWARD: There is a crying need today to recognise and accord the status of a distinct profession to mediation instead of treating it as a tack-on to the legal profession. In order to professionalise mediation, what is first required is to prescribe the qualification. Entry to

Zeyad Abouellail*   Paris Court Of Appeal, CCI, Pôle 5 – Chambre 16, 25th Of February 2020: N° 19/07575, N° 19/15816, N° 19/15817, N° 19/15818, N° 19/15819   The newly established International Commercial Chamber of the Paris Court of Appeal recently rendered its first – and much anticipated – decision in setting aside proceedings against an international arbitral award. This decision, constituted of a series of judgments rendered on the same day and in the same case, gives important precisions on the control of arbitrators’ independence and impartiality and clarifies the extent of their duty of disclosure.   The Case   Three Brazilian companies were involved in an offshore oil project in Brazil (Dommo, Barra, and Enauta[i]). In view of the realisation of this project, the companies were members of a Consortium governed by a joint operating agreement. A dispute arose in connection with the execution of the project and Dommo was later excluded from the Consortium. This exclusion prevented Dommo from selling its stake to a third party.   Dommo initiated an arbitration before the London Court of International Arbitration (LCIA) against Barra and Enauta (respondents). The arbitrators transmitted their respective declarations of independence in November 2017. Once constituted, the arbitral tribunal, sitting in Paris, rendered an interim award on bifurcation and then rendered five interim and costs awards (the Awards) between February 2018 and January 2019.   In the course of proceedings, Barra added a new lawyer to its team of counsel. This arrival of a new lawyer forced the arbitrator appointed by the respondents to update his declaration of independence in November 2018. Subject to his updated declaration, Dommo requested clarifications from the co-arbitrator. In his clarifications, the latter stated that he was counsel from 2012 to 2015 (around two and a half year before the start of the arbitration) at a Saudi firm, itself affiliated with the law firm of Barra’s new lawyer, whose clients are two of Barra’s majority shareholders.   In light of these elements, Dommo filed a challenge against the co-arbitrator with the LCIA, which was rejected in February 2019. Accordingly, it was in the context of the applications to set aside the Awards before the Paris Court of Appeal that Dommo reiterated its concerns on the respondent-appointed arbitrator’s independence and impartiality, as the set aside proceedings were initiated on the ground that the arbitral tribunal was irregularly composed[ii].   The Annulment Proceedings   Dommo argued that the arbitrator’s failure to disclose the link between him and a firm whose clients are Barra’s shareholders was sufficient to cast doubt on the arbitrator’s independence and impartiality from the point of view of a \”reasonable observer\” (¶ 25). Dommo also alleged that its challenge was not premature since the information was not easily accessible and refuted the presumption of public knowledge as it claimed that the presence of the information in question on the internet didn’t necessarily mean that it was easily accessible. It asserted that the “duty of curiosity” (devoir de curiosité), which is imposed on the parties at the start of arbitration, requires only that due diligence be performed, the parties not being required to carry out in-depth research.   In response, Barra and Enauta argued that the information was public knowledge. As such, Dommo did not fulfil its duty of curiosity when it could have easily accessed the information. The respondents asserted that the immaterial and indirect nature of the links existing between the arbitrator and Barra was not of a nature such as to create a reasonable doubt in the minds of the parties as to the arbitrator’s independence nor affect his judgment.   In summary, the allegations of the parties related to (i) the alleged publicity of the information in question and whether the arbitrator should have disclosed them and (ii) whether the links between the arbitrator and the party in question were likely to influence the arbitrator’s independence and impartiality.   The Court’s answer was twofold: in light of the evidence presented, (i) the Court finds that the information was not public and that the arbitrator had a duty to disclose such information that can give rise to doubts about his independence. Nonetheless, (ii) the Court rejected the setting aside of the Awards as it found that the links between the arbitrator and Barra are unsubstantiated and do not influence the arbitrator’s independence nor affect his judgment.   How Did The International Commercial Chamber Analyse The Alleged Publicity Of The Information?   Under French law, an arbitrator must disclose any circumstances that could give rise to a reasonable doubt regarding their independence or impartiality[iii]. The Court explained that the duty of disclosure must be assessed in the light of both the publicity of the criticised situation and its reasonably foreseeable influence on the arbitrator’s judgement (¶ 43), confirming prior case law[iv].   In regard to information subject to disclosure, it is generally considered in French jurisprudence that only information linked to the dispute are in principle concerned[v]. This approach is shared by other jurisdictions, as a German court considered that in principle, an arbitrator must not disclose all information but only the relevant circumstances which in the view of the parties can reasonably cast doubts about his independence and impartiality[vi].   French law notably exempts the arbitrator from disclosing what is publicly known (exception de notoriété)[vii]. However, it is in deciding what constitutes “public” information that resides the main difficulty. Even if prior case law admitted the public character of information available on the internet[viii], this decision reinforces the uncertainties of this affirmation, as not all information available on the internet is mechanically easily accessible[ix].   The Court adopted a very pragmatic approach in its decisions to admit that the information was not public knowledge and that it should have been disclosed by the arbitrator (¶. 52), even though available on the internet. The Court concretely analysed the necessary operations to access the information in question. It noted that access to this information is only possible “after a