The appellant brought a NAFTA Chapter 11 claim against Mexico, which was dismissed by a three-member arbitration tribunal.
The appellant later discovered that the Mexican-appointed arbitrator had communicated with Mexican officials during the arbitration regarding potential future appointments.
The application judge found a reasonable apprehension of bias but declined to set aside the award, reasoning that the other two arbitrators were impartial.
The Court of Appeal allowed the appeal and set aside the award, holding that a reasonable apprehension of bias concerning one member of a tribunal taints the entire panel and cannot be balanced away as a minor procedural error.
