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The Wroclaw Court of Appeal and the special ICC rules for the appointment of arbitrators when a party is a State

This Polish Court of Appeal has set aside an ICC award on the grounds that the defendant (a Polish municipality) would have been affected by a non-compliance by the ICC with its rules on the appointment of arbitrators.

The arbitrator who had been appointed was, as requested by the Claimant, not connected with Polish entities and not of Polish nationality.

The Polish entity criticized the appointment for having been made directly by the ICC headquarters, without consulting the Polish National Committee, under art. 13(4) of the ICC rules on the ground that a party was a state entity.

The Respondent argued that, under Polish law, local government entities are separate from the State and that consequently it was not a state entity and that the appointment should have gone through the Polish National Committee.

The Court of Appeal shared the Respondent’s approach and set aside the award.

The ICC Commission on Arbitration involving State and State Entities under the ICC Rules of Arbitration had held that the direct appointment by the ICC Court aimed at responding “to the perception that ICC National Committees lacked neutrality owing to the fact that they are often composed of leading companies of business associations” of their country.

Is this different procedure to appoint arbitrators justified in your opinion, or should it be abolished or rather extended to all appointments of arbitrators ?

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