To misquote Chekhov, knowledge is of no value unless it is deployed. This proved true in the recent case of Radisson Hotels APS Danmark v Hayat Otel Işletmeciliği Turizm Yatırım Ve Ticaret Anonim Şirketi  EWHC 892 (Comm), where the Claimant’s strategic decision to ‘bank’ grounds of objection to an arbitral award for later use resulted in its s.68 challenge being dismissed.
The Claimant (“Radisson”) is part of an international hotel management group and the Defendant (“Hayat”) is the owner of a Turkish hotel managed by Radisson. Hayat alleged that the hotel had been mismanaged and commenced arbitral proceedings (the “Arbitration”).
In March 2021, a three member Tribunal comprised of two KCs and an industry professional identified in the Judgment as “CD” rendered a Partial Award on liability and causation, with issues of quantum to be determined. The Partial Award found Radisson liable to Hayat for breach of contract, breach of fiduciary duty, negligence and breach of duty as a bailee.
In December 2020, Hayat’s former in-house counsel with responsibility for the Arbitration, Dr Durman, contacted Radisson to offer his services as a lawyer “even against [Hayat’s holding company]” . The following then took place during the quantum phase of the Arbitration:
Between 24 September 2021 and 26 January 2022, representatives of Radisson (including its internal counsel, Ms Cambré, and external counsel, Quinn Emanuel) attended a number of meetings and telephone calls with Dr Durman. During those discussions, Dr Durman alleged that CD had engaged in ex parte communications with representatives of Hayat.
On 1 December 2021, Radisson engaged Dr Durman as “a legal adviser for matters relating to Turkey” .
Dr Durman put Radisson in touch with Hayat’s former expert, Mr Önkal. Radisson’s discussions with Mr Önkal included his “previous work for Hayat and whether [he] could assist Radisson in the Arbitration” . Mr Önkal also informed Radisson that CD had been a former student of his and that he had put her forward to Hayat as a possible arbitrator .
On 22 December 2021, the President of the Tribunal (the “President”) resigned for health reasons.
In January 2022, Radisson engaged Mr Önkal to assist it with the quantum phase of the Arbitration. On 4 January 2022, Mr Önkal provided Ms Cambré with a USB drive of documents pertaining to his work for Hayat. These included a Word document reproducing the text of an email exchange between members of the Tribunal during March 2019 (the “March Emails”). Ms Cambré forwarded the contents of the USB drive to Quinn Emanuel.
Quinn Emanuel discovered the March Emails on 13 January 2022. The following day, Radisson filed its Rejoinder on quantum (the “Rejoinder”).
On 25 and 26 January 2022, Mr Önkal gave Radisson native copies of the March Emails, which showed that they had been provided to him by CD. Two days later, Radisson issued a Claim Form alleging actual and/or apparent bias on the part of CD and applying to set aside the Partial Award pursuant to ss.68(2)(a), (c) and (g) of the Arbitration Act 1996 (“AA 1996”)1.
Shortly thereafter, Hayat disclosed a small number of further communications between Mr Önkal and CD (the “April and May Emails”).
Hayat denied that the March, April and May Emails evidenced either actual or apparent bias. In particular (and inter alia), it was not clear whether CD had appreciated that Mr Önkal was engaged by Hayat at the relevant time.
Dame Moulder DBE (sitting as a Judge of the High Court) considered the following (inter alia):
While a “credible source”  had informed Radisson of the existence of ex parte contacts between CD and a representative of Hayat as early as September 2021, Radisson had waited a further four months to issue its s.68 challenge and had participated in the Arbitration in the intervening period. Hayat argued that, as a consequence of this continued participation, Radisson had waived its right to challenge the Partial Award pursuant to s.73(1) of the AA 1996.