ICC2 annulment15 Aug 2025 11:30
Here is just one of many posts on the Norwegian forum where a bit of investigation has revealed serious conflicts and procedural errors. The more I read about the mishandling of ICC2, the more convinced I am that we will secure an annulment.
‘I think the previous post highlights many critical aspects of Cecilia Carrara's dual role as climate activist and judge in the case. Nevertheless, there are several specific points that indicate that the ICC-2 judgment should be annulled:
Lack of reasoning and application of law – Zenith's own stock exchange announcement states that after 32 months of negotiations, the tribunal delivered a 70-page ruling of which only six pages contained reasoning. The judges rejected all claims of $130 million, but did so without applying applicable law and in violation of a previous ICC decision, and they also failed to maintain control over the process. An arbitral award without satisfactory reasoning violates both basic predictability and the principle that the parties should receive a fair assessment of their arguments.
Systematic procedural errors – The same announcement describes that "numerous procedural irregularities" were documented during ICC-2, and these were formally recorded in order to be invoked in the event of annulment. This suggests that the complainant’s right to be heard may have been violated, which under Swiss law provides grounds for setting aside an award.
Independence and impartiality – Carrara has participated in the IFRIQYA seminar in Tunis together with Jacob Grierson and Ahmed Ouerfelli, who represent Tunisia in the parallel investment case, as well as Professor Walid Ben Hamida, Tunisia’s appointed judge. When an arbitrator meets the opposing party’s lawyers in a professional forum during the same period as the case is ongoing, questions of neutrality arise. Swiss law allows for annulment if a party discovers circumstances that give reason to doubt the impartiality of a judge, provided that the application is made within a relatively short period of time after becoming aware of the circumstances.
Climate activism as bias – Carrara herself has stated that she sees climate-related disputes and sustainability clauses as the norm of the future, and that greenwashing and “Carbon Majors” cases will shape legal developments. It is therefore legitimate to ask whether her long-standing involvement in climate and sustainability organisations could influence her views on an oil company like Zenith, especially when she failed to inform the parties about it or potential meetings with Tunisian representatives.
Prejudices – In Eiser v Spain, an investment tribunal was annulled because a judge had failed to disclose a professional relationship with the claimant’s expert; the Committee emphasised that the incorrect composition of the tribunal and a breach of basIs
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