The risk of annulment is different for arbitrations seated in Germany, England and France.
Just ask Google. Whatever the question, our first port of call is to check the internet. But are arbitrators permitted to go online to research a point of fact relevant to the case before them? If they do, must they give the parties an opportunity to comment on their findings? The answers may be different for arbitrations seated in Germany, compared to those seated in England and Wales, and France.
German court pushes the like button
The Frankfurt Higher Regional Court had to answer these questions in a recent ruling (Docket No 26 Sch 18/20) on the enforceability of an arbitral award obtained by an Austrian pharmaceutical company (AOC) against a biotech firm based in Taiwan (PEC). The tribunal had awarded AOC around EUR140 million in damages in a Frankfurt-seated arbitration under the 2017 ICC Rules. PEC applied to the Higher Regional Court for annulment because the tribunal had consulted the website of the German national health insurance after the close of proceedings, and had relied on its content to justify adopting the drug pricing method advocated by AOC in its calculation of damages. PEC complained that it had not been given an opportunity to comment on the new information and that the tribunal had thereby violated its right to be heard.