 Good morning, I'm delighted to be here today, thanks to the organizing committee and to Kevin and Damien in particular. I will be, as Marie-Louise explained, I will be exploring the issue of social relationships between arbitrators and whether this can be a source of bias or rather an effective tool of in running the arbitration process. Now in international arbitration, more often than not, tribunals are composed of three arbitrators and as we all know the pool of international arbitrators is limited to a relatively small number of individuals which leads them to sit together several times in different cases. Now before we further explore these social relationships, I just wanted to look at this chart. The dots on this chart represent the names of arbitrators that sit in investment arbitration cases and the lines that link these names show which arbitrator has sat with which other arbitrator in the same tribunal. I find this chart interesting because it shows how dense the network of relationships between arbitrators is and and this is only in investments arbitration. In commercial arbitration one could imagine that this network may not be as dense only because we could imagine that there are more arbitrators all over the world that are appointed in commercial cases. So a similar chart in commercial arbitration would have more dots, but I believe that it would have a similar amount of lines linking those dots. So it does not change the fact that indeed the arbitration market creates relationships between arbitrations of various strengths. And of course arbitrators act as counsel and counsel act as arbitrators. The same individuals meet in different hearing rooms in conferences. They may have even worked together in law firms. They may be affiliated with the same arbitral institutions or be members of the same professional arbitral bodies. And going a step further, these same people are bound to form relationships that may go beyond the strict professional boundaries. They can go together on holiday maybe, they can play golf together or even call each other on their birthdays. This all sounds very nice indeed and it would be unusual if human beings do not relate to each other outside of their professions. Some arbitrators advocate that such relationships are useful and even essential to performing their duties as arbitrators. But is this true or is it as simple as that? Can these relationships also affect the conduct and ultimately the outcome of the arbitration? Before exploring the possible answers to these questions, I wanted to have a look at how arbitral arbitration rules deal with relationships between arbitrators. Now it seems that the ties between arbitrators is an issue that may be a little bit overlooked by arbitration rules. Arbitration rules do not impose independent partiality on arbitrators, sorry of course impose independent partiality, but these are oriented mainly towards the parties and not the arbitrators. For example, Article 11-2 of the ICC arbitration rules provides that every arbitrator must be and remain independent of the parties involved in the arbitration. Article 5-3 of the LCA rules provides that all arbitrators shall be and remain in partial and independent of the parties, they don't refer to arbitrators. Interestingly, Article 10-1 of the 2010 version of the Netherlands Arbitration Institute rules is the only one that contained an explicit reference to relationships with arbitrators. It provides that the arbitrator shall be in partial and independent, he may not have a close personal or professional relationship with a co-arbitrator or any of the parties. But this prohibition of a close personal or professional relationship was removed in the subsequent version of the MAI rules in 2015. So I think we can agree that relationships between arbitrators have been really recognized by arbitration rules as an important factor in the conduct of the arbitration because probably there is no obvious link with the arbitrator's capacity to be in partial. Now let's look at what the IBA guidelines on conflicts of interest think about these relationships. They do address these relationships in the green list and in the orange list. The green list is a list of ties that the arbitrator does not have to disclose. And this includes, for example, the fact that the arbitrator has a relationship with another arbitrator through membership in the same professional association, that the arbitrator teaches in the same faculty or school as another arbitrator or serves as an officer of a professional association, or that the arbitrator was a speaker, moderator or organizer in one or more conferences. The orange list, list ties between arbitrators that must be disclosed. And this includes the fact that the arbitrator and another arbitrator are lawyers in the same firm or they're members of the same barristers chambers. It is interesting to also know that the IBA guidelines refer to close relationships or enmity that are to be disclosed only when they exist between arbitrator and counsel, but not between arbitrators. So it would appear again here that social relationships between arbitrators do not need to be disclosed if we look at the IBA guidelines. And yet arbitrators are human beings and are subject to many biases that may affect their judgments. Now, bias I learn is an inclination to prefer one thing over the other, a person, a one person over the other or a group of persons over the other, and it can be actual and stay within the tribunal or it can be apparent and also affect the obvious to the parties, in which case the parties tend to take action. I will of course try to avoid to venture into psychology here, but I just want to underline that the existence of many different bias that arbitrators may be subject to is, and I have listed on this slide a few of them. These are party bias, cultural bias, hindsight bias, self-serving bias, knowledge bias, reputational bias and caseload bias to name only a few. And this is already quite a lot when an arbitrator is to start with, when an arbitrator is appointed on a case. In addition to all of this, and because relationships between arbitrators are much more common than relationships between arbitrators and counsel, should we be adding an additional bias on that list, an arbitrator's bias. As we all know, arbitrators have to live together during the life of the arbitration. They meet, they discuss, they exchange views, they oppose to each other's views. They have drinks together during a hearing or meetings. They communicate regularly by email or by phone. They can even spend several time days or weeks together during their deliberations. There's a lot more in their interactions than just sitting in the hearing room during the days of the hearing. And their relationships tend to be far more long-term and less ephemeral than we would think. I think that this can indeed lead to bias, and in addition to this, arbitration rules do not regulate the procedures that are to be adopted in the making and reviewing an award by the arbitrar tribunal. So arbitrators are free to conduct the proceedings and the deliberations and their exchanges as they see fit. But does this mean that a president of a tribunal may unintentionally favor one of his co-arbitrators over the other? Or may a co-arbitrator side with a president's view and isolate the other arbitrator? Can two arbitrators form a clique and exclude, in essence, the third arbitrator? In reality, I think that nothing stops a president from meeting with one of the co-arbitrators with whom he or she may have a close relationship in informal exchanges, including writing the award. In England, there is a well-established practice that barristers belonging to the same chambers may act as arbitrators in the same proceedings. And it might appear that in such cases, junior barristers may end up drafting the award for the senior barrister. And of course, this may lead to the exclusion of the third arbitrator from the process. Now this may not necessarily be intentional, but it might arise from what Rusty Park described as the moral hazard implicit in any hidden in-group complicity. So can the arbitrators be trusted to be independent and impartial, despite previous and ongoing contacts between them? And even if we accept that the relationship or the absence of our relationship may not directly affect their independence, there is, I think, an important risk that it might affect the intensity of the interaction and the pattern of their interaction. It might affect the way they communicate and they deliberate. It might have an impact on the quality of the adjudication process. So indirectly, it might affect the resulting award. On the other hand, the same ties between arbitrators can and do prove to be an effective tool in the decision-making process. Arbitrators who know each other may result in an arbitral tribunal that operates as a common team with a common sense of purpose and can lead to a smooth and speedy contact of the arbitration. Many well-known arbitrators insist, actually, that on the necessary social aspect of the arbitral decision-making. Pierre Terciet suggests that arbitrators must get along well for a tribunal to function well and speaks of a special club des arbitres which shares many common interests. If Fortier suggests that to ensure constructive and productive deliberations, members of a tribunal must establish a bond and that the better they know each other, the better their deliberations will unfold. He goes as far as to know that the chemistry, which prevails among the members of the tribunal, becomes as important as their experience and expertise. And Lucien Reid advocates the so-called Reid's retreat and suggests that arbitrators should meet before the hearing outside of their offices and brainstorm the case. I must admit that I find it difficult to take a position as to whether these social relationships are a source of bias or are an effective tool, whether they can jeopardize the proceedings or whether they can assist the effective conduct of the arbitration, which is why I look to see if these social relationships have given rise to challenges against arbitrators. Now, in my experience, the personal relationships between arbitrators are either rarely known to the parties and in any event not really taken into account during the selection process of an arbitrator. In fact, unless there is a dissenting opinion, the parties do not have the slightest idea of what goes on during the deliberations between the members of the tribunal. And because these ties, these relationships are less well known, it is not surprising that there are not many examples of challenges out there. I have tried to locate a few just to give you an idea. In a decision by the French Supreme Court, the Supreme Court ruled that the fact that two arbitrators participate in conferences or academic work in the field of arbitration does not justify a lack of independence or impartiality. The newest district court back in 2004 found that the previous airplane ownership was too insubstantial to warrant vacating an award and that such connections are not unusual given the tightly made professional communities from which arbitrators will likely be drawn. A decision by the LCIA of 2007 found that a challenge against two arbitrators merely based on ill-founded negative feelings on the part of the minority arbitrator had to be rejected. On the other hand, the Paris Court of Appeal decision in the famous TAPI case annulled an award based in Tarelia on the fact that one of the arbitrators marginalized his co-arbitrators in the conduct of the arbitration. But another reason why there is not much publicly available information about challenges is also the fact that arbitrators sometimes resign when faced with a challenge based on the ties that they may have with their co-arbitrators. And there are a few examples of such resignations. In one of them an arbitrator resigned over a challenge based on the fact that he taught in the same university as one of his co-arbitrators. And although he considers this challenge to be unfounded, he explained that the climate of the proceedings had become too poisoned and he had not longer the necessary level of trust by one of the parties. And this leads me to believe that arbitrators should be conscious of their unintentional biases that may be formed by their social relationships and not underestimate them. And even though the statement of independence that they sign when they're appointed does not require them to do so, arbitrators sometimes, and I think it's a good practice, mention pre-existing relationships they may have with other arbitrators, while noting that such relationships do not make them impartial or do not create an obstacle. And this may be helpful in order to dispel any doubt in the eyes of the parties as to the arbitrator's intellectual independence, because we should not forget that an arbitrator should not only be independent but also appear to be so. Last comment, just on the interaction between the three members of a tribunal when there are social and other ties between them, is that I think that it's important that the president of the tribunal establish a very good working relationship between the members of the tribunal. And that if conflicts arise, as sometimes can happen, the arbitrators do not are mindful of the fact that one of them may be isolated or excluded and do their utmost to prevent this from happening. And before closing, I just could not resist the temptation to say a word about diversity only because about a year ago I was in the same room giving a presentation about diversity in international arbitration. So when preparing for today's presentation, it just obviously occurred to me that the potential bias that may be created by the dense network of relationships between arbitrators is yet another reason why parties and councils should also be looking at more diverse candidates when making arbitral appointments. Thank you very much.