The application for annulment of an arbitral award must not constitute a second way to challenge the constitution of the Arbitral Tribunal by a party who has belatedly challenged an arbitrator (Cour de cassation, 1st Civil chamber, 15 June 2017, no. 16-17108).

A telecommunications company and an African state were joint shareholders of a company. A dispute arose between the two shareholders.A telecommunications company and an African state were joint shareholders of a company. A dispute arose between the two shareholders. 
The telecommunications company seized the International Chamber of Commerce by making a request for arbitration. The President of the Arbitral Tribunal stated in his declaration of independence of 14 July 2013 that he didn’t have to disclose any fact or circumstance likely to call in question his independence or to raise a reasonable doubt in the minds of the parties as to his impartiality.

The telecommunications company’ lawyer informed the other party on 21 August 2013 that the President of the Arbitral Tribunal had been appointed arbitrator by the ICC in a previous case involving the holding company of the telecommunication company.

On 24 October 2013, the State signed the Terms of Reference (article 23 of ICC rules). The terms of reference under the ICC arbitration rules is an important step of the arbitration procedure, which determines the mission of the arbitral tribunal, in particular by determining the parties to the arbitration, the place of arbitration, a statement Summary of the parties’ claims, the list of arbitrators and their contact details, and the rules applicable to the proceedings.

The State made a request for recusal after the terms of reference, on 25 January 2014.

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