NEWSLETTER-2020-metin

198 NEWSLETTER 2020 by the Dutco case 1 a landmark decision rendered with respect to the constitution of the arbitral tribunal in multiparty arbitration. The discretion to appoint all three arbitrators is provided for exceptional circumstances and aims to avoid an important risk of inequality and unfairness that may affect the validity of the award. Even though this additional provision is brought to ensure procedural fairness it may raise some concerns. Freedom of the parties in ap- pointing arbitrators or choosing the procedure that will be followed in appointing the arbitrators is one of the key rights in international arbitration. This provision on its face disregards this freedom as the provision grants such discretion to the ICC Court notwithstanding any agreement by the parties as to the method of constitution of the arbitral tribunal. We will see in practice which “exceptional circumstances” the ICC Court will invoke this provision and whether it will be consid- ered as an interference to one of the fundamental rights of arbitration. If the ICC Court does not use its discretion in very limited extreme cases it could create grounds for the parties to set aside or oppose the award’s recognition and enforcement. Party Representation The 2021 Arbitration Rules introduces new provisions that aim to avoid conflict of interest issues questioning arbitrators’ impartiality and independence. Article 17(1) provides that each party must promptly inform the Secretariat, the arbitral tribunal and the other parties of any change in its representation. Article 17(2) grants the arbitral tribunal the right to exclude the new party representative from the proceedings in whole or in part. This is another important addition to the 2021 Arbitration Rules mirroring the 2014 LCIAArbitration Rules. The IBA Guidelines on Conflicts of Interest in International Arbitration provides that parties should inform any change of legal representation, however, there was no regulation allowing the arbi- tral tribunals to exclude counsel in order to avoid conflict of interest concerns. The only provision that the parties could have relied upon before is Article 22 of the 2017 ICC Arbitration Rules which allows 1 Siemens AG and BKMI Industrienlagen GmbH v. Dutco Consortium Construc - tion Company Ltd., French Court of Cassation, Ch. Civ. 1, 7 January 1992.