Update 29 April 2021 prof Peters and Meester Bakker argued differently here, in 2020 (in Dutch), in summary and with strong arguments (as well as in contrast with the French Court) pointing to the locus arbitri, the curial seat as agreed between the parties, as the natural home for any subsequent disputes involving liability of the arbitrators.
Thank you indeed Gilles Cuniberti for flagging and discussing the end of March decision (Press Release only) by the Paris Court of First Instance in which it held that an action against an arbitrator for damages following his failure to disclose a conflict of interests, which led to the annulment of the award, fell within Brussels Ia despite its arbitration exception.
I have more sympathy for the decision than Gilles. At the very least I am not surprised national courts should be confused about the demarcation. Brussels Ia inserted the Smorgasbord of confusion following West Tankers, by collating an even prima facie conflicting array of ins and outs in its recital 12. Even before the entry into force of Brussels Ia, Cooke J in Toyota v Prolat held that recital 12 is of no use. Other than in fairly straightforward cases such as Premier Cruises v DLA Piper Russia, good argument might exist on many conceivable cases.
Deciding the demarcation with help from the New York Convention itself (one might have suggested that what is included in New York, should not be included in Brussels Ia) does not help in the case at issue for as ia notes, Uncitral and New York are silent on the status of the arbitrator.
Assuming BIa applies, there must be little doubt there is a contractual relation, even between the arbitrator and the party who did not appoint her or him, in the BIa Article 7(1) sense, following CJEU flightright.
Curial seat was Paris, yet hearings and deliberations had taken place in Germany. Forum contractus as a provision of services was held to have been Germany.
This is where Burkhard Hess, at the request of Gilles, took over: Burkhard further discusses the findings on arbitration, agrees with Germany as the forum contractus per ia CJEU Wood Floor Solutions, and suggests (see similarly Mann J in Philips v TCL) the German courts are bound by the Paris’ court’s findings per CJEU Gothaer.
Much relevant. I do not know whether appeal is being sought.
EU Private International Law, 3rd ed. 2021, Heading 126.96.36.199, para 2.110 ff.;