Week 1 - Selection and Impartiality of arbitrators/judges

Question 1

‘Peace Treaties’ (1950) (3 things were held)

Answer 1

1) ICJ Case
2) Facts: UNGAres stated that HUN + BUL had to submit to arbitration under ‘Peace Treaty’ with US+UK. Under Peace Treaty had to pick 1 arbitrator and the 3rd would be agreed upon. Upon failure to agree UN Gen-Sec would appoint. However, BUL+HUN refused to appoint an arbitrator

Issue: could Sec-Gen pick 3rd arbitrator although 2nd national arbitrator had not been chosen

Held:
1) No,

2) whilst nothing precluded it in the treaty, clause had to strictly construed (2nd arbitrator should be picked before 3rd)
3) selection by Gen-Sec of 3rd arbitrator => 2 member panel (not what had been intended)

Question 2

How could the issue in ‘Peace Treaties’ have been overcome

Answer 2

1) What should have been done: permit third party to appoint 2nd arbitration member upon refusal
2) e.g. Art 3(e) Annex VII UNCLOS

Question 3

Croatia/Slovenia Arbitration (Partial Award) (4 things were held)

Answer 3

Facts: SLV arbitrator discussed confidential information with SLV agent. Subsequently both SLV arbitrator and Agent, and CRO arbitrator resign and were replaced

Issue: CRO argued arbitration had to be stopped due to breach of independence/impartiality

Held:
1) Arbitration could continue

2) no doubts about the impartiality of the remaining 3 arbitrators or the 2 new ones
3) views expressed by resigned arbitrators would not be taken account going forward
4) to ensure fairness to CRO tribunal could reopen oral phase to let parties express views on facts and arguments

Question 4

Chagos Marine Protected Area Arbitration (4 things held)

Answer 4

Facts: in UK-MAU arbitration UK chose Greenwood as arbitrator (for panel of 5) - Annex VII Arbitration under UNCLOS

Issue: was UK’s appointment valid given long-standing and close relationship with UK govt?

Held:
1) Yes the appointment was valid

2) The applicable standards for impartiality were to be fonud in Annex VII UNCLOS - not in private law instruments (no standard of ‘appearance of bias’)
3) MAU had to prove that there were “justifiable grounds for doubting the independence and impartiality” of Greenwood
4) Greenwood’s previous activities as counsel were insufficient to doubt his impartiality

Question 5

What are the 5 grounds for annulment under ICSID? (6)

Answer 5

1) Tribunal improperly Constituted
2) tribunal manifestly exceeded its powers
3) Corruption on part of a tribunal member
4) serious departure from fundamental rule of procedure
5) award did not state reason upon which it was based
6) Art 52 ICSID

Question 6

When may arbitration be resorted to under WTO? (4)

Answer 6

1) assess level of retaliation (Art 22(4) WTO DSU)
2) assess with principles and procedures set out in Art 22(3)
3) assess permissibility of proposed suspension
4) as alternative to panel and AB (Art 25 DSU) (never used)

Question 7

What is the legal nature of WTO panel procedures?

Answer 7

1) Arbitration-like: ad hoc panel

2) Court-like:
i) predetermined procedures and applicable law under DSU
ii) AB standing body

3) Conciliation-like:
i) panels consult with parties to seek mutually-satisfacotry solution
ii) parties entitled to comment on provisional report (Art 15(1) DSU)

4) Control by political organ (DSB)

Question 8

Why is AB in WTO currently not functioning?

Answer 8

1) US started blocking appointments for AB due to its previous decisions
2) caused AB to have insufficient members (less than 3)

Question 9

What are notable features of the consultation stage in WTO?

Answer 9

1) First step in WTO DS system
2) Consultation in mandatory (Art 4(3) DSU)
3) After 60 days of inability to settle dispute by consultation parties MAY request estab. of panel (Art 4(7) DSU)