Russia Challenges Arbitrator for EAPIL Blog Comment

On 15 January 2026, the Paris Court of Appeal ruled on an application to set aside an arbitral award on the ground of the alleged partiality of two of the members of the arbitral tribunal.

Background

The case was concerned with the alleged expropriation by the Federation of Russia of real properties belonging to a Ukrainian businessman after the invasion of Crimea in 2014. The Ukrainian businessman initiated arbitral proceedings against the Russian Federation on the basis of the Ukraine-Russia BIT after certain of his real properties were transferred to the Russian Federation in 2014.

The plaintiff appointed Professor Andreas Bucher as an arbitrator. As Russia would not appoint an arbitrator, the Permanent Court of Arbitration (PCA) appointed Professot Raùl Emilio Vinuesa Alsina as second arbitrator, with the consent of Russia. The arbitrators appointed Professor Siegfried H. Elsing as president of the tribunal.

Russia challenged the appointment of Elsing before the arbitral tribunal, which rejected the challenge in March 2020.

In August 2022, the tribunal issued an award on jurisdiction whereby it rejected the challenges of Russia to its jurisdiction and ruled that it had jurisdiction. Russia initiated setting aside proceedings in French courts against the award in November 2022.

In October 2023, however, the appointment authority of the PCA allowed the challenge of both Bucher and Elsing, on grounds which the judgment of the Paris Court of appeal only alluded to, but did not fully present.

Meanwhile, in the French annulment proceedings, Russia had also challenged the impartiality of the same two arbitrators.

Commenting on the EAPIL Blog

Russia’s lawyers argued that Bucher had shown partiality by making a comment on this blog.

The post was entitled Children from Ukraine: New EU Information Page about Civil Judicial Cooperation and explained that the European Commission had launched a new page on the e-Justice Portal concerning children from Ukraine. The Commission stated that “Russia’s military aggression against Ukraine raises questions about the situation of refugee children who are displaced in the European Union from Ukraine” and identified the instruments which could be used to protect refugee children.

Professor Bucher commented:

Thank you so much for this most helpful information.
Is there any explanation why the 1954 Geneva Convention on refugees is not mentioned?

And that was it. Russia’s lawyers argued that this comment revealed Bucher’s bias against Russia.

The Court rejected the argument as follows:

The comment posted on the blog of the European Association of Private International Law (…) merely thanks the author of the publication for the information thus disseminated and asks him about the absence of reference to the Geneva Convention on Refugees, which constitutes the theme of the Commission’s declaration, without bias or clearly expressed opinion;

One wonders how the lawyers of Russia could think that such an argument could contribute in any way to the demonstration of the alleged partiality of Prof. Bucher and to the case of their client.

More generally, the abysmal weakness of the argument raises an interesting question of judicial culture. Did Russia’s lawyer not care even a little about their credibility? Did they not think that making such an argument could lead the court to not take seriously another better argument?

Russia’s lawyers put forward two other arguments. The first was that the University of Geneva (where Bucher long taught) had suspended its cooperation with Russian institutions. The Court ruled that as an academic, Bucher was autonomous from the University, and that he was not responsible for its opinions. The second argument was that Bucher had made comments in exchanges with the PCA after the award was made which allegedly showed animosity towards Russia. The Court ruled that in any case, comments made after the award was made did not reveal the state of mind of an arbitrator at the time when the award was made.

To Like or not to Like

The chair of the arbitral tribunal, Prof. Siegfried H. Elsing, was a partner at Orrick.

In March 2022, Orrick publicly stated that “Russia’s invasion of Ukraine is reprehensible, and we join the international community in condemning it”, and that it would not undertake any new work for any entity related to Russia.

This statement had been the ground for the removal of Elsing by the PCA. The Paris Court agreed and ruled that, as this statement had taken place before the award was made, it was very relevant.

In addition, the Paris court noted that in February 2023, Elsing had ‘liked’ several tweets of a Ukrainian diplomat, or reporting on a conference of that diplomat, where Russia was criticised. The court further noted that the fact that these ‘likes’ were later on deleted showed that they were not entirely insignificant.

The Paris Court of Appeal set aside the award on jurisdiction.