THE AUTHORS:<\/strong> On Wednesday, 25 March 2026, the Paris Court of Appeal hosted a conference entitled \u201cDialogue between Judges and Arbitrators.\u201d Moderated by Prof.\u00a0George Bermann<\/strong><\/a>\u00a0(Professor at Columbia Law School), the panel brought together prominent figures from both the judiciary and the arbitral community: Mr\u00a0Raoul Barlow<\/strong>\u00a0(Counsel at\u00a0Paris Court of Appeal), Dr\u00a0Maxi Scherer<\/a>\u00a0<\/strong>(Professor at\u00a0Queen Mary University of London), Dr\u00a0Inka Hanefeld<\/strong><\/a>\u00a0(Arbitrator and former judge), Dr\u00a0Bernard Hanotiau<\/a>\u00a0<\/strong>(Arbitrator,\u00a0Hanotiau Tossens Goldman), Prof. Dr\u00a0Christa Hurni\u00a0<\/strong>(Professor at\u00a0University of Bern), and Mr\u00a0David Knowles<\/strong>\u00a0KC (Barrister at\u00a039 Essex Chambers<\/a>).<\/p>\n\n\n\n Prof. Bermann opened the discussion by underlining the importance of dialogue between national courts and arbitral tribunals. He explained that while arbitration relies on party autonomy and private adjudication, it cannot function in isolation from State courts. Courts intervene at various stages of the arbitral process, including in relation to jurisdiction, interim measures, challenges to arbitrators, annulment proceedings and enforcement. The question is therefore not whether judges and arbitrators interact, but how that interaction should be structured so as to preserve both the autonomy of arbitration and the legitimacy of judicial control.<\/p>\n\n\n\n The debate first turned to questions of jurisdiction. Prof. Bermann recalled that jurisdiction is assessed both by arbitral tribunals and by courts, but that the analysis differs significantly between commercial arbitration and investment arbitration. In commercial arbitration, the focus is generally on whether the arbitration agreement was validly concluded, whether it applies to the dispute, and whether it extends to non-signatories. In investment arbitration, jurisdictional analysis is more structured around ratione personae, ratione materiae, ratione loci and ratione temporis. Mr Knowles observed that the growing and sometimes counterproductive use of anti-suit injunctions has not helped achieve sound systemic solutions. He emphasised the need for greater harmonisation and for specialised judges to deal with challenges and enforcement.<\/p>\n\n\n\n Illustrating the method followed by French courts in investment arbitration, Mr Barlow referred to the Cour de Cassation\u2019s Oschadbank decision of 7 December 2022. He highlighted that the French annulment judge now strictly focuses jurisdictional review on the conditions of the arbitration agreement contained in the investment treaty. This approach brings commercial and investment arbitration closer together and confirms a clear separation of roles between courts and tribunals. By centring the analysis on the arbitration agreement, French courts can exercise review while respecting the tribunal\u2019s jurisdictional determinations within that framework.<\/p>\n\n\n\n The discussion then moved to arbitrator independence and impartiality. Dr Hanefeld identified two main practical issues for arbitrators, the first being disclosure obligations. In a context where challenges based on non-disclosure have significantly increased, arbitrators tend to favour \u201cutmost transparency\u201d in order to pre-empt objections. Second, she observed that, at the annulment stage, German courts require proof of very serious and unequivocal bias before setting aside an award. Annulment on this ground is therefore reserved for situations of particular gravity.<\/p>\n\n\n\n Expressing concern about increasing paranoia surrounding arbitrator independence and impartiality, Dr Hanotiau suggested that institutions should require parties to conduct their own research into publicly available information at the outset of proceedings, in line with the IBA Guidelines on Conflicts of Interest. He added that counsel should be under an obligation to raise objections as soon as they arise.<\/p>\n\n\n\n Prof. Dr Hurni explained that the Swiss approach is demanding but not paranoid. She referred to a procedural example in which the mere fact that counsel and an arbitrator had previously worked in the same law firm did not automatically disqualify the arbitrator. She underlined the procedural discipline imposed under the Swiss Federal Act on Private International Law, which requires parties to raise objections immediately.<\/p>\n\n\n\n Mr Barlow noted that impartiality is not unique to international arbitration but inherent to the act of judging itself. He added that French case law interpreting Article 6 of the European Convention on Human Rights informs the practices of both judges and arbitrators. Calling for prudence, common sense and pragmatism, Mr Barlow highlighted that annulments on these grounds remain extremely rare in France and often occur when an arbitral institution has itself removed an arbitrator.<\/p>\n\n\n\n Mr Knowles warned tribunals against adopting an overly defensive stance and stressed the importance of responsibility and restraint on the part of counsel when considering challenges.<\/p>\n\n\n\n On public policy, Dr Hanefeld referred to recent German jurisprudence setting aside an award on the basis that the tribunal had violated a party\u2019s right to be heard. Dr Hanotiau shared his practice of formally requesting that parties undertake all possible investigations during the proceedings to confirm the absence of unlawful payments, thereby reinforcing the integrity of the process. Mr Knowles drew a distinction between corruption affecting the underlying transaction and corruption infiltrating the arbitral process itself. He emphasised that the latter requires coordinated action between courts and tribunals to safeguard the integrity of arbitration.<\/p>\n\n\n\n To conclude, Mr Barlow raised the possibility of importing into French law a mechanism inspired by Article 34 of the UNCITRAL Model Law. Such a mechanism would allow courts to stay annulment proceedings and give tribunals an opportunity to remedy certain procedural defects. He recognised, however, that practical questions remain, particularly concerning the reconstitution of a tribunal and the issue of costs.<\/p>\n\n\n\n Dr Hanefeld noted that, under German law, suspension of annulment proceedings is not foreseen, but there is a possibility for the court to remit the case to the previous tribunal. Prof. Bermann expressed support for preserving awards wherever possible, while noting that very few defects in arbitral proceedings or awards are actually curable upon remand from a court to a tribunal. Incapacity of a party, invalidity of an arbitration agreement, improper composition of the tribunal and violation of public policy cannot be cured. Once an award is rendered, violations of due process can also hardly be corrected. What can realistically be cured are only a tribunal\u2019s failure to deal with a claim before it and the wrongful finding that a claim is non-arbitrable.<\/p>\n\n\n\n Mr Knowles concluded the conference by calling for increased exploration of avenues for dialogue between courts and arbitral institutions. He highlighted the model of the Standing International Forum of Commercial Courts, which brings together 67 jurisdictions worldwide and offers a platform for the exchange of best practices between national courts and arbitration institutions.<\/p>\n\n\n\n This article was originally published in PBA Bulletin on 17 April 2026, as part of a special edition curated by Paris Baby Arbitration (PBA)<\/a>, in collaboration with Jus Mundi <\/a>and Jus Connect<\/a>.<\/p>\n\n\n\n
Fouad el Hage<\/strong>, Bachelor in Law and Economics Candidate at Paris 1 Panth\u00e9on-Sorbonne<\/strong>
Sofiane El Ouardi,<\/strong>\u00a0Master 2 International Arbitration and Trade Law Candidate at Paris 1 Panth\u00e9on-Sorbonne<\/strong><\/p>\n\n\n\n
\n\n\n\n\n
As part of Paris Arbitration Week 2026, Paris Baby Arbitration (PBA)<\/a><\/strong>, in collaboration with Daily Jus<\/a><\/strong> and Jus Mundi<\/a><\/strong>, brings together contributions in a special edition of PBA Bulletin<\/a>,<\/strong> sharing reflections and perspectives from across this year\u2019s events.<\/em><\/h4>\n<\/blockquote>\n\n\n\n
\n