W17: Arbitrators in IIA

Question 1

Institution of Proceedings

Answer 1

REQUEST:
Initiated by: Request for arb. to the ICSID Secy. Gen.

CLAIMANT:
Request by: Investor/Host State
- In practice, Investor = claimant

LANGUAGE:
Drafted in: One of ICSID's official languages:
i. English
ii. French
iii. Spanish

LODGING FEE:
Non-Refundable: US $25,000 @ time of request

ADMIN. FEE:
After Constitution of Tribunal: US $23,000/year

CONTENTS OF REQUEST:
Info. concerning:-
i. Dispute
ii. Parties 
iii. Jurisdictional Requirements
iv. Basis of consent 

PRE-REGISTRATION:

i. Correspondence w/both parties
ii. Call by ICSID for further clarifications

REGISTRATION:
Secy. Gen. will register request UNLESS - manifestly outside the Centre’s Jurisdiction

POST REGISTRATION:
Secy. Gen. will notify the parties, in WRITING

Question 2

Tribunal: Constitution

Answer 2

COMPOSITION:
3 Arbitrators
- 1 Arbitrator relatively rare

STANDARD PROCEDURE FOR APPOINTMENT:

i. Each party appoints one arbitrator
ii. Presiding Arbitrator appointed by agreement of:
a) the parties
b) the 2 party-appointed arbitrators
- National arbitrators are EXCLUDED;
- EXCEPT if each individual tribunal member appointed by agreement of parties
- GUARANTEE maximum objectivity of the arbitrators

LIMITATION PERIOD:

i. 90 Days
ii. If not constituted w/in this time, either party may request the Admin Council’s Chairman to make any outstanding appointments (from ICSID’s Panel of Arbitrators); after consulting w/parties as far as possible
iii. Chairman appointed Arbitrators may NOT be nationals of the Host State, or Co-Nationals of the Investor.
- Purpose: Avoid a stalemate if one party is uncooperative.

Question 3

Arbitrators

Answer 3

QUALITIES FOR APPOINTMENT:

1. High Moral Character
2. Recognised Competence in Fields of law/commerce/industry/finance
3. Relied Upon to Exercise Independent Judgment
4. Independent of the Parties
   - Each arbitrator must sign a Declaration providing details of any relationships w/the parties
   - Conflict of Interest = Bar to Appointment; may lead to Disqualification

CONTINGENCIES:

i. Death
ii. Incapacity
iii. Resignation
- Resulting vacancy filled by the same method applied for original appointment

DISQUALIFICATION GROUNDS: Arbitrator manifestly lacks qualities reqd. for appointment

GROUNDS FOR PROPOSAL FOR DISQUALIFICATION:

i. Allegations of conflict of interest
ii. Lack of independent judgment
iii. Non-compliance w nationality requirements

DECISION ON DISQUALIFICATION:

i. Made by unchallenged tribunal members
- If they do not agree, then
ii. Made by Admin. Council Chairman
- Also decides if a Sole Arbitrator/Majority of Arbitrators is challenged.

Question 4

Compañía de Aguas del Aconquija, SA and Vivendi Universal v Argentina

Answer 4

FACTS: President of Ad Hoc Committee disclosed that a partner of his law firm was giving legal advice to the claimant.

PROPOSAL FOR DISQUALIFICATION: Unsuccessful

GROUNDS:

i. The relationship was immediately and fully disclosed
ii. There had never been a personal lawyer-client relationship
iii. The work in Q. had nothing to do w/case before the Committee
iv. Only concerned a specific transaction
v. The relationship was about to come to an end

HELD: Mere existence of some professional relationship is NOT automatic basis for disqualification of an Arbitrator/Committee Member. All circumstances need to be considered in order to determine whether the relationship is SIGNIFICANT enough to justify entertaining REASONABLE DOUBTS as to the capacity of the arbitrator/member to render a decision freely and independently.