Abstract
The duty of disclosure that falls to investment arbitrators currently presents a significant number of contentious aspects. Many ICSID challenges have addressed issues such as the formal aspects and content of the statement of impartiality and independence, as well as the scope of this duty and the applicable disclosure standards. A detailed analysis of the decisions resulting from these challenges leads to the conclusion that the unchallenged co-arbitrators, who are in most cases responsible for settling challenges brought by parties, may have sometimes erred on the side of leniency when judging their colleagues’ actions or omissions in connection with the duty of disclosure. In practice, the very wording of ICSID provisions and a sense of endogamy among the somewhat limited group of arbitrators are two factors that have prevented breaches of this duty from being sanctioned with disqualification. This chapter sets out and argues for a series of regulatory reforms that seek a firmer reshaping of the profile of the duty of disclosure within the context of investment arbitration (e.g., improving formal aspects of the statement of impartiality and independence and making changes to the drafting of ICSID Rule 6(2)b, as well as various suggestions concerning the timing, celerity and addressees of the duty of disclosure). The chapter also contains detailed reflections on two closely connected issues: the importance of having access to a reliable CV for each investment arbitrator and the arbitrators’ duty to investigate. A recurrent underlying theme is the role that traditional arbitral institutions or new stakeholders such as the Multilateral Investment Court (MIC) should adopt vis-à-vis the adjudicators’ duty of disclosure in the investment milieu.
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Notes
- 1.
- 2.
The general impression is that a party that fails to challenge an arbitrator will lose the panel’s goodwill, and that unsuccessfully challenged arbitrators are weakened in the eyes of their co-arbitrators. O’Brien and Nandivanda (2014), pp. 1–5.
- 3.
Brower refers to the California disclosure standards as an—non-international—example of “going too far”, which “impairs the utility of the system” and “would likely be counter-productive and ultimately inefficient”. The referred Californian standards imposed expansive disclosure obligations on commercial arbitrators, and failure to disclose was connected to arbitrator’s disqualification and setting aside of the award. Brower (2010), pp. 15–16.
- 4.
In the commercial arbitration context, it has also been pointed out that imposing full and exhaustive disclosure on arbitrators prevents parties from working with the most knowledgeable and experienced arbitrators. This issue has been the subject of debate for decades in some jurisdictions, such as the United States. For example, as early as 1968, the US Supreme Court nullified an arbitration award because the arbitrator’s failure to disclose a repeated and significant relationship with one party presented sufficient evidence of the “evident partiality” referred to in the US Federal Arbitration Act. Dotseth (2012), pp. 347–354.
- 5.
Investment cases such as ConocoPhillips v. Venezuela and Victor Pey Casado v. Chile have indisputably become endless challenge sagas, for which expressions such as the “black art of bias challenge” have been coined. Luttrell (2009). As a mechanism to fight against the black art of harassing arbitrators, a later work of the same author proposes an amendment to ICSID Rule 9, which would allow either the other tribunal members or the chairman to decide that the challenging party may have to pay some of or all the fees and expenses incurred when deciding on the proposal to challenge, and would also take into account whether or not the challenging party had made more than one proposal in respect of the same tribunal member during the proceedings . Luttrell (2009), p. 615. Reflecting on the same topic, Greenberg (2010). Attempts to combat this “black art” in the field of international commercial arbitration include initiatives such as the Annex to the LCIA Rules (2014): “A legal representative should not engage in activities intended unfairly to obstruct the arbitration or to jeopardise the finality of any award, including repeated challenges to an arbitrator’s appointment or to the jurisdiction or authority of the arbitral tribunal known to be unfounded by that legal representative”. LCIA (2014). Academics have pointed out that one of the arbitration parties may in bad faith generate certain links with the arbitrator to subsequently take advantage of them through annulment action if the award does not meet their expectations. Fernández Rozas (2013), p. 808.
- 6.
Resorting to a Molière’s citation, Mourre (2009).
- 7.
This statement from an ICSID decision is very clear in this sense: “the challenge of arbitrators is a procedural right of the Parties, granted under the ICSID regime (…) As there are no concrete circumstances indicating the contrary, the exercise of this procedural right cannot be characterised as abusive”. RSM v. Saint Lucia, par 75.
- 8.
- 9.
Focusing on commercial arbitration, Sousa Uva (2009), pp. 480–511.
- 10.
In Rubins and Lauterburg’s words: “the duty to disclose not only serves as a basis for an educated analysis of the prospective arbitrator’s qualifications, but also insulates the arbitrator from a subsequent challenge based on the disclosed circumstances”. Rubins and Lauterburg (2010), p. 156.
- 11.
- 12.
Cárdenas and Rivkin (2005), p. 200.
- 13.
Paulsson (2013), pp. 152–153.
- 14.
Suez v. Argentine Republic, par 44 (paragraph cited in Tidewater v. Venezuela, par 47).
- 15.
Fabrica v. Venezuela (2016a), par 57.
- 16.
Article 58 ICSID Convention. ICSID (1966). An analysis of ICSID decisions on proposals to disqualify arbitrators shows some differences depending on who the challenge adjudicator is. In a formal sense, the chairman’s decisions, which are sometimes requested from third parties such as the Secretary-General of the PCA, are often more succinct than those issued by the co-arbitrators. Quantitatively speaking, the chairman is more likely to uphold a disqualification than the unchallenged arbitrators are. Luttrell also points out that the chairman’s centralized decision-making role is more likely to generate a predictable body of authority; so much so that the author suggests that there is a growing tendency to challenge more than one arbitrator—double-barrelled challenges—perhaps because this guarantees the chairman’s intervention under the current ICSID system. Luttrell (2016), pp. 597–621. More updated statistics can be found in: Secretariat UNCITRAL (2018), p. 13. More generally, criticisms of the ICSD system are raised in Vasani and Palmer (2015).
- 17.
None of the few ICSID cases in which challenges have been upheld has primarily dealt with the issue of the arbitrator’s duty of disclosure. It is symptomatic that most of these cases have so far been resolved by the ICSID Administrative Council.
- 18.
It is difficult to find any challenge decision statements that reproach an arbitrator. Perhaps the two that follow are the most symptomatic in this sense: first, “it might have been possible at first to consider (the arbitrator’s) attitude in these matters as a one–off serious lapse of judgment, but her removal by the Permanent Court of Arbitration in the Yukos cases after her refusal voluntarily to withdraw appears to confirm that she has more broadly a view of her independence and of the relevant criteria in this connection which do not longer accord with the minimum standards that now prevail in these matters” (Compañía v. Argentine Republic. par 231); second, “there is nothing in the IBA Guidelines that supports a special deference to the subjective positions of arbitrators based on their level of experience or standing international community. [The arbitrator] no doubt has extensive experience in international arbitration and is highly regarded in this field, but this fact is irrelevant in applying the IBA” (Perenco v. Ecuador, par 62). The Secretary-General of the PCA upheld the challenge in this later case under IBA Guidelines. This decision would presumably have been considered invalid within the ICSID convention framework, but the arbitrator in fact resigned. Campolieti and Lawn (2010).
- 19.
The co-arbitrators stated: “It should be noted that these written exchanges were all made courteously and professionally, as might have been expected from their authors; and that the Claimant raised its concerns at the earliest opportunity, first privately with the Respondent and then formally with the ICSID Secretary-General . This was no tactical device by a party acting in bad faith to thwart or delay the arbitral process. To the contrary, as the Claimant party with the first session imminent on 7th January 2008 [sic], it was not in the Claimant’s interest to impede these arbitration proceedings unnecessarily. Further, the Claimant’s proposal has carefully eschewed any personal attack on [the arbitrator]. As recorded in the Claimant’s concluding submissions: Electrabel does not seek to embarrass [the arbitrator], or force her to resign (…)”. Electrabel v. Hungary, par 27. However, the tone of some challenges has become stronger lately; for instance, one claimant recently stated that the arbitrator “lied when he stated that he learnt at the jurisdictional hearing, for the first time, that (…)”. Victor Pey Casado v. Chile (2017b), par 25.
- 20.
Electrabel v. Hungary, par 45.
- 21.
Perhaps for these reasons, the survey carried out by the IBA Subcommittee on Investment Treaty Arbitration concluded that: “a large percentage of the respondents specifically identified the procedures for challenging arbitrators in ICSID and ICSID Additional Facility arbitrations as in need of reform. The challenge procedures under other arbitration rules (such as the UNCITRAL Arbitration Rules and the ICC Arbitration Rules) were generally not identified as areas where reform is needed): IBA Subcommittee on Investment Treaty Arbitration (2016), p. 5.
- 22.
Paulsson (2012), p. xix.
- 23.
ICSID (2016).
- 24.
EC (2016).
- 25.
It should be borne in mind that the MIC would be a permanent body consisting of tenured members/judges. Statements of impartiality and independence would thus be issued and updated by a member/judge who works for the MIC on a permanent basis. Practical differences could be created with respect to the investment arbitration implemented to date, in which every arbitrator selected for a specific arbitration has to issue the relevant statement for each arbitration.
- 26.
Rogers (2014), par 10.10.
- 27.
The statements from Howard Mann in the Ghana v. Telekom case are prime examples: “That the arbitral Tribunal in the Ghana arbitration ruled there was no conflict is symptomatic of the gulf between the “inside the tent” view and the outside view of the Court. That the Permanent Court of Arbitration sides with the Tribunal is a sign of the deep systemic failure by key institutions to put the perception of conflict by outside stakeholders and objective observes above the interests of the current practitioners and practices of the international arbitration bar. Institutional or systemic safeguards are, in effect, almost nonexistent or are at a most rudimentary level (minimalistic disclosure requirements)”. Mann (2005).
- 28.
Kinnear and Nitschke (2015).
- 29.
ICSID provides reasoned decisions on challenges, a pioneering approach in this sector. Other arbitral institutions have recently embraced this policy, in spite of the fact that most arbitration institutions still do not give reasons for their decisions. In this vein, the 2017 ICC Arbitration Rules have eliminated the statement in Article 11.4 which in the past read: “and the reasons for such decisions shall not be communicated”; LCIA Court Articles 10.5 and 10.6 state that reasons for the challenge must be given unless the parties agree otherwise, and the VIAC board also provides rationales for its decisions. ICSID reasoned decisions on challenges are also published. Hacking (2006).
- 30.
For the sake of simplicity, the comments to the rule in this chapter also apply to Article 13(2) of ICSID Arbitration (Additional Facility) Rules, unless indicated to the contrary.
- 31.
An analysis of the different versions of this precept since its 1978 incorporation into ICSID Arbitration (Additional Facility) Rules shows that the scope of the duty of disclosure has increased over time.
- 32.
ICSID (last accessed in June 2018a).
- 33.
The author would like to thank Ms. Frauke Nitschke for the practical information provided on this issue.
- 34.
ICC (last accessed in June 2018a).
- 35.
ICC (last accessed in June 2018b).
- 36.
ICC (last accessed in June 2018c).
- 37.
Infra, Chap. 4.2.
- 38.
Various arbitral institutions have been consulted by the author with regard to their policy on the accessibility of their statement of independence and impartiality. Three of the commercial arbitration institutions that kindly responded to the queries (LCIA, ICDR and FAI) confirmed that this statement is not available online. In the case of ICDR, for example, the Notice of Appointment is only available to arbitrators through its online portal once they have been selected for a case. Perhaps there could be a case for making these documents accessible without restrictions so that they could be compared, which may lead to the creation of new and more complete versions.
- 39.
CAM (last accessed in June 2018).
- 40.
SIAC (last accessed in June 2018).
- 41.
- 42.
WTO (1996b).
- 43.
UNCITRAL (2010).
- 44.
However, following an inquiry by the author, the Permanent Court of Arbitration kindly provided this clarification on the matter: “A Model of a Declaration of Acceptance and Statement of Impartiality and Independence for Cases under the PCA 2012 Rules is available as Appendix XV of the book “A Guide to the PCA Arbitration Rules” co-written by our Deputy Secretary-General, Brooks Daly, our Senior Legal Counsel, Evgeniya Goriatcheva and one of our previous Assistant Legal Counsels, Hugh A. Meighen (2014). This Model is also used in cases under the UNCITRAL Rules, with minor modifications.”
- 45.
The model referred to in the previous note states: “I attach a statement (…) Use separate sheet for disclosure”.
- 46.
Note that, unlike the ICSID binomial “Declaration/Statement”, the double use of the term “statement” in these contexts may be misleading.
- 47.
This document is referred to as the “Statement of Independence and Impartiality” in this chapter, in spite of the fact that this is not a universal designation, and that in some cases there is only one document covering a wider range of issues.
- 48.
UNCITRAL Model Statement: “No circumstances to disclose: I am impartial and independent of each of the parties and intend to remain so. To the best of my knowledge, there are no circumstances, past or present, likely to give rise to justifiable doubts as to my impartiality or independence. I shall promptly notify the parties and the other arbitrators of any such circumstances that may subsequently come to my attention during this arbitration”. UNCITRAL (last accessed in June 2018). PCA: “I am impartial and independent of each of the parties and intend to remain so. To the best of my knowledge, there are no circumstances, past or present, that need be disclosed because they are likely to give rise to justifiable doubts as to my impartiality or independence”.
- 49.
To the contrary, it has been stated that the 2006 wording of ICSID Arbitration Rule 6 (2): “does not provide a fixed form of wording to cover the contingency where a declarant considers that there is no basis on which to attach such a statement; that is, there are no separate words supplied in the text of Arbitration Rule 6 (2) to the effect that, as far as the declarant is concerned, there are no relationships or other circumstances that fall within the form of declaration found in Arbitration Rule 6 (2) (e.g., there is no provision allowing a declarant to place a checkmark in favour of an assertion akin to: “There is no such relationships or circumstances””. Alpha v. Ukraine, par 50.
- 50.
Alpha v. Ukraine, par 15.
- 51.
Ibid, par 7.
- 52.
Ibid, par 8.
- 53.
Ibid, par 56. In Universal v. Venezuela, the same arbitrator had also crossed out the sentence and afterwards submitted a letter to ICSID on the issue, par 10.
- 54.
ICSID (2016).
- 55.
It has been suggested that the following information be incorporated : “ICSID should require each arbitrator to confirm as part of the same declaration (i) his/her commitment to conduct the proceedings fairly and efficiently, by adopting procedures suitable to the circumstances of the arbitration, (ii) the days or weeks in the next two years that he/she has already committed to other cases or other obligations that make him/her unavailable, and (iii) his/her commitment that he/she will not take on new appointments that will conflict with his/her responsibilities to the case subject to the appointment”. Debevoise & Plimpton (2017). This proposal has also recently been incorporated, in the context of mediation, in the “Model Statement of Independence and Availability” proposed by the Investor-State Mediation Task Force (2017).
- 56.
Infra, Chap. 2.3.
- 57.
CAM (2010a).
- 58.
CJEU (2016).
- 59.
Annex 2: “This list contains examples of information of the type that a person called upon to serve in a dispute should disclose pursuant to the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. Each covered person, as defined in Section IV:1 of these Rules of Conduct has a continuing duty to disclose the information described in Section VI:2 of these Rules which may include the following: (a) financial interests (e.g. investments, loans, shares, interests, other debts); business interests (e.g. directorship or other contractual interests); and property interests relevant to the dispute in question; (b) professional interests (e.g. a past or present relationship with private clients, or any interests the person may have in domestic or international proceedings , and their implications, where these involve issues similar to those addressed in the dispute in question); (c) other active interests (e.g. active participation in public interest groups or other organisations which may have a declared agenda relevant to the dispute in question); (d) considered statements of personal opinion on issues relevant to the dispute in question (e.g. publications, public statements); (e) employment or family interests (e.g. the possibility of any indirect advantage or any likelihood of pressure which could arise from their employer, business associates or immediate family members).” WTO (1996).
- 60.
The 1984 ICSID wording required only “other relevant relationships” (author’s emphasis). Daele (2012), p. 7. “Relevant” is still included in the wording of the UNCITRAL Model Statement, which establishes a minimum requirement. In Alpha v. Ukraine, the co-arbitrators stressed the differences between: “6(2)(a) [which] by its plain verbiage only addresses relationships with parties whereas 6(2)(b) is not similarly or unambiguously constricted in its reach. Further, 6(2)(b) is broader than 6(2)(a) in another significant feature through its use of the word “circumstance” rather than of the word “relationship.” According to Webster’s Dictionary, “relationship” connotes the “state of being related or interrelated”, thereby requiring in this instance a personal connection of some sort, whereas “circumstance,” connotes a “condition, fact or event accompanying referencing certain facts or situations that are attendant to, or are surrounding, certain other facts or situations. In effect, a circumstance is more inclusive than is a relationship”. Alpha v. Ukraine, par 53.
- 61.
N.A. (2017), p. 7.
- 62.
Standard 6: “Third-party funders and insurers in relation to the dispute may have a direct economic interest in the award, and as such may be considered to be the equivalent of the party. For these purposes, the terms ‘third-party funder’ and ‘insurer’ refer to any person or entity that is contributing funds, or other material support, to the prosecution or defence of the case and that has a direct economic interest in, or a duty to indemnify a party for, the award to be rendered in the arbitration.” IBA (2014).
- 63.
Doubts may arise as to the scope of the concept of party. The issue may therefore be raised with regard to persons with a controlling influence on the claiming company or senior official representatives of the respondent state. Daele (2012), p. 8. It may also be raised by new phenomena such as third-party funding, in spite of the fact that texts such as CETA seem to rule out this possibility. (“Third party funding means any funding provided by a natural or legal person who is not a party to the dispute but who enters into an agreement with a disputing party in order to finance part or all of the cost of the proceedings either through a donation or grant, or in return for remuneration dependent on the outcome of the dispute”). This is not a trivial question, especially in the ICSID context, where the wording of Rule 6 (2) b) is controversial.
- 64.
UNCITRAL model statements of independence pursuant to Article 11 of the Rules (Circumstances to disclose) do reflect this distinction.
- 65.
General Standard 2. IBA (2014).
- 66.
Code of Conduct NAFTA, TTIP, EU-Vietnam FTA, Singapore IPA.
- 67.
Daele uses ICSID’s travaux préparatoires to point out that an understanding seemed to exist regarding the standard’s objective nature at that time. Daele (2012), pp. 11–12.
- 68.
UNCITRAL (2010).
- 69.
The same idea is embodied in the UNCITRAL model statement “any other relevant circumstance” (emphasis added). UNCITRAL (last accessed in June 2018).
- 70.
In commercial arbitration, CIArb for instance. Outside that context, the PCA and the WTO.
- 71.
SIAC (“may give rise to justifiable doubts”), KLRCA (“may give rise to justifiable doubts”), Barcelona Arbitration Court (“might give rise”), ICDR (might reasonably), DIA (“might give rise to reasonable doubts”), ICC (“might be of such a nature as to call into question … could give rise to reasonable doubts”). The Netherlands Arbitration Institute (NAI) uses novel terminology when indicating that “an arbitrator who suspects that there could be justifiable doubts as to his impartiality or independence…” The reference to “directly or indirectly” in Article 13.2 of the Procedural Rules of the Spanish Court of Arbitration (CEA) is of some interest: “[the proposed arbitrator] must also immediately inform the Court of any circumstance that (…), directly or indirectly, may raise justifiable doubts”.
- 72.
In the context of the 2016 CETA, the Code of Conduct has not yet been created. Article 8.44 indicates:”The Committee on Services and Investment shall, on agreement of the Parties, and after completion of their respective internal requirements and procedures , adopt a Code of Conduct for the Members of the Tribunal to be applied in disputes arising out of this Chapter, which may replace or supplement the rules in application, and may address topics including: (a) disclosure obligations; (b) the independence and impartiality of the Members of the Tribunal; and (c) confidentiality. The Parties shall make best efforts to ensure that the Code of Conduct is adopted no later than the first day of the provisional application or entry into force of this Agreement, as the case may be, and in any event no later than two years after such date”. CETA (2016).
- 73.
Article 3.1 of the Code of Conduct: “Prior to his or her appointment as a Member, a candidate shall disclose to the Parties any past or present interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias.” EU-Singapore IPA (2018).
- 74.
Article 3.1 of the Code of Conduct: “Prior to confirmation of his or her selection as an arbitrator under Section B (Investor-State Dispute Settlement) of Chapter Nine (Investment), a candidate shall disclose any past or present interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding.” EUSFTA (2015).
- 75.
Article 3.1 of the Code of Conduct: “Prior to their appointment candidates shall disclose any past and present interest, relationship or matter that is likely to affect their independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding”. TTIP (2016).
- 76.
Article 3.1 of the Code of Conduct: “Prior to confirmation of her or his selection as an arbitrator under Chapter X (Dispute Settlement), a candidate shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding”. EU-Vietnam FTA (2016).
- 77.
Article 3.1 of the Code of Conduct: “Prior to their appointment candidates shall disclose any past and present interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding.” JEFTA (2016).
- 78.
Part II: “A candidate shall disclose any interest, relationship or matter that is likely to affect the candidate’s independence or impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias in the proceeding”. NAFTA (1994).
- 79.
Throughout this book, various references are made to the NAFTA Code of Conduct, which is considered a pioneering text in this matter. It should not be forgotten, however, that the said text only applies to a specific subtype of Chapter 11 disputes. Holbein and Greenidge (1995), p. 62.
- 80.
A literal reading of the text shows that the reference to the “eyes of the parties” is only linked to the duty of independence, whereas the duty of impartiality is assessed by applying the reasonable doubt test: “The prospective arbitrator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality”. ICC (2017b).
- 81.
The standard indicates: “If facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, the arbitrator shall disclose such facts or circumstances to the parties, the arbitration institution or other appointing authority (if any, and if so required by the applicable institutional rules) and the co-arbitrators”. IBA (2014).
- 82.
Academic commentators typically use the following example: if a party is not familiar with the functioning of the English bar, an arbitrator will be forced to disclose membership of the same barrister’s chamber(s) as one of the co-arbitrators or one of the arbitration’s counsels . Stanic (2009), p. 220.
- 83.
Daele (2012), pp. 10–11.
- 84.
The Decision, which is not available in English, states: “En adición, en fecha 16 de junio de 2011, presentó sus observaciones de conformidad con la Regla 9(3) de las Reglas de Arbitraje. En ese sentido el [árbitro] claramente expresó “(...) [c]uando hice mi declaración, estaba al tanto de que la firma Arnold & Porter era la representante legal de la República de Panamá y que el Sr. Patricio Grané había sido miembro del equipo de abogados en los procedimientos de arbitraje. Mi opinión fue entonces, y sigue siendo ahora, que el trabajo que desempeñó el Sr. X con la firma Sidley Austin LLP no es un factor que pueda afectar mi habilidad de juicio independiente, tal y como lo requiere el artículo 14 del Convenio”. (In addition, on 16 June 2011, [the arbitrator] submitted his observations in accordance with Rule 9 (3) of the Arbitration Rules, stating,”(...) [When I made my statement, I was aware that Arnold and Porter was the legal representative of the Republic of Panama and that Mr. X had been a member of the team of lawyers during the arbitration proceedings . My opinion at that time was, and continues to be, that Mr. X’s work with Sidley Austin LLP is not a factor that could affect my ability of independent judgement as required by Article 14 of the Convention) (English translation by the author). Nations v. Panama, par 75. In the same vein, in Suez v. Argentine Republic, the arbitrator—without making any reference to “mind-stretching”, declared that she “saw no reason to advise all the parties in her pending arbitrations of an unrelated appointment as a UBS board member”. Suez v. Argentine Republic, p. 18. Another example of this practice is Total v. Argentine Republic, in which it was stated that the arbitrator “explained that when she was filling out her Form of Acceptance for this case, she did not consider it necessary to disclose the matters Argentine Republic questioned owing to the nature of the parties and of the dispute, the legal issues, and the identity of the lawyers involved in the matters”. Nations Energy v. Panama, par 140, (emphasis added).
- 85.
The Decision states: “la no divulgación de la relación existente entre él y el señor X, aunque hubiera sido prudente y aconsejable, no fue más que el resultado de un honesto ejercicio de la discrecionalidad. Asimismo, los Dos Miembros estiman que dicha información puede considerarse como de dominio público” (The non-disclosure of the relationship between [the arbitrator] and Mr. X, although prudent and advisable, was merely the result of an honest exercise of discretion. In addition, the two Members believe that such information can be considered to be in the public domain) (English translation by the author). Nations v. Panama, par 76.
- 86.
Tidewater v. Venezuela, pars 36 and 39.
- 87.
It is worth noting that the ICSID Secretariat Discussion Paper dated October 22 2004 made no reference to the eyes of the parties. However, the Secretariat’s suggestion for the 2006 version required arbitrators to disclose “more generally, any circumstances likely to give rise to justifiable doubts as to the arbitrator’s reliability for independent judgment”. ICSID (2004), p. 13.
- 88.
Total v. Argentine Republic, par 55. In general terms, various ICSID decisions use the expression “honest exercise of judgment” to approve the arbitrator’s modus operandi. However, on some occasions the party bringing the challenge states that certain conduct constitutes a “dishonest exercise of judgment”. In Highbury v. Venezuela, for instance, the investor’s lawyers claimed that: “las Directrices de la IBA califican dentro del Listado Naranja más de tres designaciones por parte del mismo abogado o de la misma Firma de abogados. De manera que no puede ser un ejercicio honesto del árbitro revelar solo un número de casos que esté por debajo de esa cifra y ocultar los restantes. Omitir la revelación de casos que evidencian que el árbitro ha sido designado 4 o más veces por parte de los mismos abogados evidencia un ejercicio deshonesto por parte del árbitro y genera una apariencia manifiesta de parcialidad y dependencia” (Under IBA Guidelines, more than three appointments by the same attorney or law firm merits inclusion on the Orange List. Therefore, it cannot be an honest exercise of judgment to reveal only a number of cases below that figure and hide the remaining ones. Omitting to disclose cases that show that the arbitrator has been appointed 4 or more times by the same lawyers shows dishonesty on the part of the arbitrator and creates a manifest appearance of partiality and dependence) (English translation by the author). Highbury v. Venezuela (2015a), par 97.
- 89.
It is advisable to make this distinction, since a law firm may have appointed the arbitrator when the country in question—in this case Venezuela—was not the defendant. The same situation arose in Universal v. Venezuela.
- 90.
Total v. Argentine Republic, pars 133 and 134.
- 91.
Ibid, par 136.
- 92.
Referring to the former Article 7(2) of the ICC rules—which shares ICSID’s drafting on this point—Derains and Schwartz (2005), p. 135.
- 93.
The following approach is revealing: “The term parties is not defined. In the strict sense, the parties are the disputants that are indicated in the first paragraph of the arbitrators’ declaration of acceptance. In the broad sense, the parties may also include other entities or persons. One of the parties in an ICSID arbitration is usually a legal entity. It is reasonable to consider the managers, directors and members of the supervisory board of such a legal entity and any person having a similar controlling influence on the legal entity to be the equivalent of the legal entity. (…) Other categories, such as employees or companies belonging to the same corporate group as the legal entity involved in the dispute should probably not be considered as being the equivalent of the parties”. Daele (2012), p. 8.
- 94.
Alpha v. Ukraine, par 54.
- 95.
A possible interpretation could be that the ad hoc committee members were trying to suggest that ICSID arbitrators that have been freely chosen by the parties have different levels of independence and impartiality from those who come from the “official” Panel of Arbitrators—a very alarming hypothesis: “In annulment cases, members of ICSID ad hoc committees are chosen exclusively from the Panel of Arbitrators, and serve at the invitation of ICSID to address this concern. Their position is therefore different from that of arbitrators. In this connection, the ad hoc Committee noted the claim contained in Professor X’s Report that there has been a demonstrable inclination of international arbitrators to raise the threshold for a challenge of their fellow arbitrators. This was not contested in cross-examination or commented upon by the parties after they were invited to do so. It may be that such an attitude more easily results amongst arbitrators who are called upon to determine a challenge in respect of an arbitrator with whom they sit (…) Ad hoc committees are not in a similar position”. Compañía de Aguas v. Argentine Republic, pars 207–210.
- 96.
The decision states: “the bank could not decide these issues for others, particularly parties to an arbitration, who from the perspective of their arbitration may have a very different view of conflicts that result or could result for them from the involvement of their arbitrator with the bank. Rather, having properly and adequately investigated and established any relationship between the bank and any of the parties to the arbitrations, it is for the arbitrator personally first to consider such a connection in terms of a voluntary resignation as arbitrator. Such connection must otherwise be properly disclosed to the parties through an adequate amendment of earlier declarations under Rule 6.” (emphasis added) Compañía de Aguas v. Argentine Republic, pars 225–226.
- 97.
Ibid, par. 229.
- 98.
It is declared that: “She had no knowledge of the business relationship between (…)”, EDF v. Argentine Republic, par 59; “she states that she did not know that UBS held shares in the Claimants. Can she be required to disclose a fact that he does not know? The answer to that question is plainly “no” (…)”. Suez v. Argentine Republic, par. 46.
- 99.
Infra, Chap. 2.7.
- 100.
They proclaim that: “Any doubt as to whether or not disclosure is to be made should be resolved in favour of disclosure” (AAA (2004) ICDR Code of Ethics); “Any doubt must be resolved in favour of disclosure” (ICC 2017a); “any doubt should be resolved in favour of disclosure” (Article 7, Code of Ethics, CAM (2010b); and “en la duda, el candidato deberá optar por la revelación”, CEA (n.a.).
- 101.
For instance, “For the avoidance of doubt”, “for the sake of transparency”, Fábrica v. Venezuela (2015), par 6.
- 102.
Explanation to IBA General Standard 3. IBA (2014).
- 103.
Total v. Argentine Republic, pars 9 and 137.
- 104.
Article 14.1 ICSID Convention (1966).
- 105.
The claimant company issued following very forceful statement: “Resulta difícil imaginar que un árbitro con más de 40 años de experiencia, que ha participado en más de 50 arbitrajes de inversión y que es profesor emérito de una de las universidades más prestigiosas del mundo no sea meticuloso”. (It is difficult to imagine that an arbitrator with more than 40 years of experience who has participated in more than 50 investment arbitrations and is Emeritus Professor of one of the most prestigious universities in the world is not meticulous) (English translation by the author). Highbury v. Venezuela (2015a), pars 108–109.
- 106.
Alpha v. Ukraine, par 64.
- 107.
Declaration frequently accompanied by an attached statement, as explained above.
- 108.
Consequently, the last sentence of this Rule 6(2) states: “Any arbitrator failing to sign a declaration by the end of the first session of the Tribunal shall be deemed to have resigned.” This Rule does not make an express reference to who the recipients of this declaration are. The time frame for the celebration of this first session is contained in Rule 13.1: The Tribunal shall hold its first session within 60 days after its constitution or such other period as the parties may agree.” ICSID (2006).
- 109.
Daele (2012), pp. 39–41.
- 110.
For instance, Article 18.2 of the CIMA Arbitration Rules states: “Within ten (10) days of being informed by the Court of their appointment, an Arbitrator shall disclose any circumstances likely to create justifiable doubts as to their impartiality, independence or availability, by means of a signed statement”. CIMA (2015).
- 111.
Article 12.2 ICDR Arbitration Rules: “Upon accepting appointment, an arbitrator shall sign the Notice of Appointment provided by the Administrator affirming that the arbitrator is available to serve and is independent and impartial. The arbitrator shall disclose any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence and any other relevant facts the arbitrator wishes to bring to the attention of the parties”. ICDR (2014). Article 13.2 of the Procedural rules of the Spanish Court of Arbitration states: “Once the arbitrator is proposed or appointed, the said individual shall be notified so that in a term of three days he or she may accept the appointment and sign a written declaration of independence and impartiality and stating that their personal and professional circumstances shall allow them to diligently comply with the post of arbitrator, and in particular, with the terms established in these Rules”. CEA (2005).
- 112.
UNCITRAL (2010).
- 113.
Article 11.2 and 11.3 of the ICC Arbitration Rules: “Before appointment or confirmation, a prospective arbitrator shall sign a statement of acceptance, availability, impartiality and independence. The prospective arbitrator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality. The Secretariat shall provide such information to the parties in writing and fix a time limit for any comments from them. An arbitrator shall immediately disclose in writing to the Secretariat and to the parties any facts or circumstances of a similar nature to those referred to in Article 11(2) concerning the arbitrator’s impartiality or independence which may arise during the arbitration”. ICC (2017).
- 114.
Articles 5.4 and 5.5 of thte LCIA Arbitration Rules: “Before appointment by the LCIA Court, each arbitral candidate shall furnish to the Registrar (…) the candidate shall sign a written declaration stating: (i) whether there are any circumstances currently known to the candidate which are likely to give rise in the mind of any party to any justifiable doubts as to his or her impartiality or independence and, if so, specifying in full such circumstances in the declaration; and (ii) whether the candidate is ready, willing and able to devote sufficient time, diligence and industry to ensure the expeditious and efficient conduct of the arbitration. The candidate shall furnish promptly such agreement and declaration to the Registrar. If appointed, each arbitral candidate shall thereby assume a continuing duty as an arbitrator, until the arbitration is finally concluded, forthwith to disclose in writing any circumstances becoming known to that arbitrator after the date of his or her written declaration (under Article 5.4) which are likely to give rise in the mind of any party to any justifiable doubts as to his or her impartiality or independence, to be delivered to the LCIA Court, any other members of the Arbitral Tribunal and all parties in the arbitration. LCIA (2014).
- 115.
Article 18 of the SCC Arbitration Rules: “Every arbitrator must be impartial and independent. Before being appointed, a prospective arbitrator shall disclose any circumstances that may give rise to justifiable doubts as to the prospective arbitrator’s impartiality or independence. Once appointed, an arbitrator shall submit to the Secretariat a signed statement of acceptance, availability, impartiality and independence, disclosing any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence. The Secretariat shall send a copy of the statement of acceptance, availability, impartiality and independence to the parties and the other arbitrators. An arbitrator shall immediately inform the parties and the other arbitrators in writing if any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence arise during the course of the arbitration. SCC (2017).
- 116.
Article 20 of the FAI Arbitration Rules: “Each arbitrator shall be and remain impartial and independent of the parties. Before confirmation or appointment, a prospective arbitrator shall sign and submit to the Institute a statement of acceptance, availability, impartiality and independence (the ”Statement”). The prospective arbitrator shall disclose in the Statement any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. The Institute shall transmit a copy of the Statement to all parties and set a time limit within which they may submit comments on the Statement or object to the confirmation or appointment of the arbitrator. An arbitrator shall promptly disclose in writing to the Institute, the parties and the other arbitrators any circumstances referred to in Article 20.2 which may arise during the course of the arbitration”. FAI (2013).
- 117.
Article 11 of the CRCICA Arbitration Rules: When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings , shall without delay disclose any such circumstances. Any doubts as to the duty to disclose a fact, circumstance or a relationship shall be interpreted in favour of disclosure. The appointment of an arbitrator shall be completed only upon the acceptance of his or her mission. The arbitrator thus appointed shall submit, within one week after being notified with his or her nomination, a written declaration confirming his or her impartiality and independence. CRCICA (2011).
- 118.
Article 11 of the KLRCA Arbitration Rules: “When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings , shall without delay disclose any such circumstances to the parties and the other arbitrators unless they have already been informed by him or her of these circumstances”. KLRCA (2017). The references contained in this book to the KLRCA have to be understood as currently referring to the Asian International Arbitration Center (AIAC).
- 119.
Standard 3 (a) of the IBA Guidelines: “If facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, the arbitrator shall disclose such facts or circumstances to the parties, the arbitration institution or other appointing authority (if any, and if so required by the applicable institutional rules) and the co-arbitrators, if any, prior to accepting his or her appointment or, if thereafter, as soon as he or she learns of them.” IBA (2014).
- 120.
For instance, Article 1456.2 of the French Code of Civil Procedure (Book IV, Title II- International Arbitration): “Before accepting a mandate, an arbitrator shall disclose any circumstance that may affect his or her independence or impartiality. He or she also shall disclose promptly any such circumstance that may arise after accepting the mandate”; Section 1036 of the German Arbitration Act (Zivilprocessordnung), “1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.” German Arbitration Act (1998).
- 121.
SIAC (2017).
- 122.
Article 3.1 of the Code of Conduct. TTIP (2016).
- 123.
There is nevertheless a relevant difference between the texts: while Article 3 of the EU-Vietnam FTA indicates that the Parties are the recipients of the pre-appointment disclosure exercised by the candidate, Article 3 of JEFTA and TTIP’s Codes of conduct do not specify this. JEFTA (2016), EU-Vietnam FTA (2016), TTIP (2016).
- 124.
Article 3.1 Code of Conduct. EU-Vietnam FTA (2016).
- 125.
Article 13.2 of the Procedural rules of the Spanish Court of Arbitration. CEA (2005).
- 126.
Article 5. LCIA (2014).
- 127.
Article 10. SIAC Investment Arbitration Rules (2017).
- 128.
Article 4 of the Code of Conduct for Members and Former Members of the CJEU: “In the event of changes in the list of entities identified in the declaration within the meaning of paragraph 3, a new declaration shall be submitted at the earliest opportunity and, at the latest, within 2 months after the change in question”. CJEU (2016).
- 129.
Article 1456.2 of the French Code of Civil Procedure (2011); Article 20 FAI (2013) and Article 18.2 CIMA: “From the time of appointment and throughout the entire procedure, all Arbitrators shall disclose promptly to the parties, to the Court and to the other Arbitrators—in the case of collegiate tribunals—any new circumstances”. CIMA (2015).
- 130.
Article 11 of the UNCITRAL rules: “An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings , shall without delay disclose any such circumstances to the parties and the other arbitrators unless they have already been informed by him or her of these circumstances”, UNCITRAL (2010); Article 1. KLRCA (2017).
- 131.
IBA Guidelines (2014).
- 132.
Article 10. SIAC Investment Arbitration Rules (2017); Article 18 SCC (2017), and Article 11.2 and 3 CAM: “the arbitrator must give immediate written notice to both the Court and to the parties of any circumstances of a similar nature to the ones described in the section above that arise during the arbitration”. CAM (2015).
- 133.
Article 11.3 UNCITRAL Arbitration Rules, Article 5.5 LCIA, Article 18 SCC, Article 20 FAI, Article 11 KLRCA, Standard 3 of the IBA Guidelines; and Article 11.5 NAI: “An arbitrator who, during the arbitral proceedings, suspects that there could be justifiable doubts as to his impartiality or independence shall communicate the same in writing to the administrator, the parties and, if the arbitral tribunal consists of multiple arbitrators, to the co-arbitrators in writing, stating the suspected reason(s)”. NAI (2015).
- 134.
Article 5.5 LCIA, Article 11 KLRCA.
- 135.
Fernández Rozas (2013), p. 818.
- 136.
In this case, the arbitrator accepted his appointment as arbitrator on 25 October 2012, being an employee of the Argentine government. As of 1 January 2013, he resigned from his position to pursue doctoral studies. The co-arbitrators considered that “the present challenge arose due to the unfortunate timing of his appointment and the disclosure requirement imposed by Rule 6 of the ICSID Arbitration Rules. Saint-Gobain v. Venezuela, par. 86.
- 137.
Other international -commercial- arbitration institutions have eventually followed this path. The ICC Note to Parties deals with the publication of information regarding arbitral tribunals (a publication system that requires the parties’ agreement, however). ICC (2017a). Likewise, the various ICC Statements of Impartiality and Independence include the following sentence: “I accept that my name, nationality, role and the method of my appointment as well as the termination of my assignment will be published on the ICC Court’s website”. ICC (2017a). Dealing with transparency, infra Chap. 5.1.
- 138.
Universal v. Venezuela, par 92.
- 139.
Tidewater v. Venezuela, par 46.
- 140.
The decision states: “while the Two Members consider that an arbitrator’s disclosure statement ought to include even publicly available arbitral appointments, in the case of ICSID appointments, this must be out of an abundance of caution , given the ready accessibility of this information in the records of the very Centre with which the parties are dealing. In any event, the Two Members consider that the fact that this information is publicly available can and should be taken into account by them in determining the separate question of whether that non-disclosure may itself amount to a manifest lack of independence or impartiality”. Tidewater v. Venezuela, par 54, (emphasis added). The same conclusion is also reached in Universal v. Venezuela, par 92: “In order to ensure that parties have complete information available to them, an arbitrator’s Arbitration Rule 6 (2) declaration should include details of prior appointments by an appointing party, including, out of an abundance of caution. However, in assessing whether an arbitrator’s non-disclosure of such appointments results in a manifest lack of independence or impartiality, the public nature of that information must be taken into account”, (emphasis added). Tidewater v. Venezuela, par 54.
- 141.
Nations Energy v. Panama, par 76.
- 142.
Tidewater v. Venezuela, par 17.
- 143.
The co-arbitrators in Tidewater rightly point out that: “this is necessarily so, since otherwise, submits Tidewater, the parties would need to conduct intrusive investigations and rely on indirect and not always reliable sources”. Ibid, par. 17.
- 144.
Suez v. Argentine Republic, par 45.
- 145.
EU-Vietnam FTA (2016).
- 146.
Article 8.44.2 CETA: “The Committee on Services and Investment shall, on agreement of the parties, and after completion of their respective internal requirements and procedures , adopt a Code of Conduct for the members of the tribunal to be applied in disputes arising out of this chapter, which may replace or supplement the rules in application, and may address topics including: disclosure obligations, the independence and impartiality of the members of the tribunal and confidentiality”. CETA (2016).
- 147.
For instance, the—sucessful—structure developed by the Financial Industry Regulatory Authority (FINRA) securities arbitration has been stressed as an example of legal framework that “heavily rely on comprehensive disclosure obligations to address and prevent conflicts of interest”. Bernasconi-Osterwalder, Johnson and Marshall, at 41.
- 148.
Explanation to IBA General Standard 3: “A disclosure does not imply the existence of a conflict of interest. An arbitrator who has made a disclosure to the parties considers himself or herself to be impartial and independent of the parties, despite the disclosed facts, or else he or she would have declined the nomination, or resigned. An arbitrator making a disclosure thus feels capable of performing his or her duties. It is the purpose of disclosure to allow the parties to judge whether they agree with the evaluation of the arbitrator and, if they so wish, to explore the situation further. It is hoped that the promulgation of this General Standard will eliminate the misconception that disclosure itself implies doubts sufficient to disqualify the arbitrator, or even creates a presumption in favour of disqualification. Instead, any challenge should only be successful if an objective test, as set forth in General Standard 2 above, is met. Under Comment 5 of the Practical Application of the General Standards, a failure to disclose certain facts and circumstances that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, does not necessarily mean that a conflict of interest exists, or that a disqualification should ensue”. IBA (2014).
- 149.
Suez v. Argentine Republic, par 32.
- 150.
The co-arbitrators stated that: “such connections are increasingly easy to make as globalization of modern life rapidly advances and countless institutions engage in activities that are global in scope. At the same time, it is perfectly possible for a person to be unaware of the links that connect him or her to others or at least to be unaware of their full implications. For example, arbitrators in this case might unknowingly have a connection to UBS by virtue of the fact that their law firms have bank accounts with a UBS foreign branch, that their university pension fund is managed by UBS, or that they or their family members own shares in mutual funds which in turn hold UBS securities”, Suez v. Argentine Republic, par 33.
- 151.
EDF v. Argentine Republic, par 123.
- 152.
The section dealing with the self-disclosure requirements for covered persons in the WTO Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes states that: “They shall take into account the need to respect the personal privacy of those to whom these Rules apply and shall not be so administratively burdensome as to make it impracticable for otherwise qualified persons to serve on panels”. WTO (1996a).
- 153.
“Trivial” and “superficial” are used in Alpha v. Ukraine: “Further, the Two Other Members view the position taken in the IBA Guidelines as reflective of the legitimate concern that a requirement to disclose trivial or superficial facts will prove burdensome to parties and arbitrators, will unnecessarily circumscribe the freedom of choice in the selection of party-appointed arbitrators and will encourage frivolous challenges”. Alpha v. Ukraine, par 66. Likewise, national case law tries to draw a dividing line between trivial and non- trivial: Daele (2012), pp. 56–65. In the WTO context, the US Communication also opposes disclosing trivial facts. US (1994). The WTO Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes uses the term “insignificant”.
- 154.
Explanation to General Standard 3 of the IBA Guidelines: “However, situations that, such as those set out in the Green List, could never lead to disqualification under the objective test set out in General Standard 2, need not be disclosed”. IBA (2014).
- 155.
The ICC Note states: “The parties have a legitimate interest in being fully informed of all facts or circumstances that may be relevant in their view in order to be satisfied that an arbitrator or prospective arbitrator is and remains independent and impartial or, if they so wish, to explore the matter further and/or take the initiatives contemplated by the Rules”. ICC (2017a), par. 17: The Chairman of the ICSID Administrative Council in Universal v. Venezuela stated that: “parties have an interest in knowing any facts or circumstances that may exist that may give doubts about an arbitrator’s independence and impartiality. Indeed, as reflected in Arbitration Rule 6 (2), disclosure by arbitrators of any such facts or circumstances is required”. Universal v. Venezuela, par 90.
- 156.
These reflections on some of the issues surrounding CVs have been enriched by the debate generated in OGEMID following a comment posted by the author. I am grateful to OGEMID members for their helpful comments.
- 157.
Compañía v. Argentine Republic, par 227.
- 158.
ICSID (last accessed in June 2018b).
- 159.
UNCITRAL (2014).
- 160.
Vito v. Canada, par 29. Commercial arbitration seems to have more resources to deal with such situations. Faced with a very extreme case: “A San Francisco court has set aside an arbitral award after it emerged that the chair of the tribunal had lied about his qualifications and impersonated a retired lawyer in California—a ruling that may threaten awards in nearly 40 US securities arbitrations conducted from 1998 to 2011”. Yong (2016).
- 161.
Some arbitration institutions that may manage investment arbitrations do not have a publicly available arbitrator database. For instance, LCIA- LCIA (last accessed in June 2018); the ICC; and Stockholm Chamber of Commerce Arbitration Institute.
- 162.
DIA (2013).
- 163.
- 164.
SIAC (last accessed in June 2018).
- 165.
Panel members who wish to update their details or CV can e-mail panel@siac.org.sg.
- 166.
Namely: name; date of birth; citizenship; contact information; current position; education; experience in arbitration practice; publications and other arbitral activities; membership of arbitral institutions; languages, legal system in which the practitioner trained; main jurisdiction of practice, and special expertise or specializations).
- 167.
VIAC (last accessed in June 2018).
- 168.
JAM (last accessed in June 2018).
- 169.
These fees are also charged by some not-for-profit organizations that deal with commercial arbitration, such as AAA or CPR (International Institute for Conflict Prevention and Resolution). CPR (last accessed in June 2018). These two US organizations keep the arbitrators/neutrals list themselves and it is not available to the public. (The AAA/ICDR has nevertheless introduced a new procedure such that the parties can access the entire panel database for a specific period once a case has been filed with the AAA. AAA/ICDR (last accessed in June 2018). Analysing some characteristics of these US “for-profit” entities, Matthews (2005).
- 170.
JAMS disclaimer: “This page is for general information purposes. JAMS makes no representations or warranties regarding its accuracy or completeness. Interested persons should conduct their own research regarding information on this website before deciding to use JAMS, including investigation and research of JAMS neutrals”; VIAC disclaimer: “I have completed this questionnaire to the above to the best of my knowledge and believe they are accurate. I understand that the above information will be used for VIAC’s internal use and may be given to interested persons and may be put on VIAC’s website”; ICC disclaimer: “We encourage users to log in to their profile from time to time and make any updates that might be useful”.
- 171.
This search is understood to be based on the information that would be found in a full CV . Victor Pey Casado v. Chile (2017a), par 92.
- 172.
For instance, in the Alpha v. Ukraine case there was a ““brief phone call” from Dr. S. to Dr. T. in 2007 inquiring as to whether Dr. T. was available to serve as an arbitrator in this proceeding ”. The award stated that the ““brief phone call” was in keeping with common practice”. Alpha v. Ukraine, par 40.
- 173.
Some investment awards recognize that the parties analyse information in the media about arbitrators. For instance: “At the same time, media regularly reported on [the arbitrator] representing Chile in an unrelated case, and Claimants regularly relied on evidence from these same media outlets during the proceedings”. Victor Pey Casado v. Chile (2017a), par 93.
- 174.
White&Case (2018), p. 20.
- 175.
- 176.
The introduction of this tool affirms that GAR ART has information on who has recently seen whom—so that a lawyer can contact a person he/she knows directly—, as well as interviews with the arbitrators about their case-management style. It has been recently reported that GAR ART already gathers more that 200 arbitrators’ profiles. GAR (2018).
- 177.
It is indicated that: “The International Chamber of Commerce (ICC) has announced it has entered into a cooperation agreement with Dispute Resolution Data (DRD)—a research service for international commercial arbitration and mediation.” ICC (last accessed in June 2018).
- 178.
- 179.
ECJ (last accessed in June 2018).
- 180.
The ECHR has stated: “In addition to the criteria set out in Article 21, paragraph 1, of the Convention (…) the Assembly has introduced linguistic requirements based on Article 21, paragraph 1, of the Convention, the need for gender balance, as well as other requisites, such as the standard curriculum vitae for candidates. Before proceeding to the election of judges, the Assembly also invites candidates to take part in personal interviews before a sub-committee set up for that purpose”. ECHR (2009).
- 181.
The Diplomatic “PSOE considers asking for revocation of Elósegui’s election to ECHR”, http://thediplomatinspain.com/en/psoeconsiders-asking-for-revocation-of-eloseguis-election-to-echr/ (last accessed in June 2018); RTVE http://www.rtve.es/noticias/20180129/psoe-asegura-juez-elosegui-falseo-su-curriculum-estudia-como-revocar-sunombramiento-estrasburgo/1669760.shtml (last accessed in June 2018). At the time of sending this book to the publisher, the aforementioned judge has reportedly initiated legal actions against the information contained in the referred websites.
- 182.
EC (last accessed in June 2018).
- 183.
An example of the importance of professional CVs and the legal consequences that may result from unreliable information occurred during in the ICSID Factory v. Venezuela case. The case dealt with the issue of the CV of one of the assistants working for the arbitrator in his chambers. The assistant’s LinkedIn profile claimed that she had worked at a specific law firm from a specific date. As a result of Venezuela’s request to disqualify the arbitrator, he declared that “[she - the assistant] has never worked for the law firm and is not an attorney. She is a secretary who assists me clerically in my arbitration files including the present one. The entry in her LinkedIn profile is inaccurate”. The other two members of the tribunal considered that “a reasonable third person would conclude that [the assistant] has committed an error on her LinkedIn page”. Fábrica v. Venezuela (2016b), pars 43 and 53.
- 184.
In the fight against gender or diversity bias, it has been proposed that in the first instance arbitration institutions should provide the parties with standardized CVs that omit in all personal references (name, gender, etc.) to the candidates. Greenwood (2015), pp. 1–9.
- 185.
Arbitration Centre of the Portuguese Chamber of Commerce and Industry (2005).
- 186.
The ICC Note highlights the importance of transparency and states that “by accepting to serve as an arbitrator under the Rules, a prospective arbitrator accepts that such information will be published on the ICC website”. ICC (2017) par. 29.
- 187.
Rule 4.2 of the Code of Professional and Ethical Conduct for Members of the CIArb (2009).
- 188.
The co-arbitrators in Suez v. Argentine Republic, for instance, are aware of this fact: “On this question, the ICSID Arbitration Rules offer little guidance. They require only the making of a declaration. They contain no specific requirement that an arbitrator is to make an investigation of possible compromising circumstances and they prescribe no standards as to the extent and nature of such investigation”, par 47.
- 189.
EU-Singapore IPA (2018).
- 190.
EUSFTA (2015).
- 191.
TTIP (2016).
- 192.
EU-Vietnam FTA (2016).
- 193.
JEFTA (2016).
- 194.
More precisely, “except with respect to her position as a member of the America’s Cup jury (since UBS sponsored a yacht in the competition), from which she resigned.” Suez v. Argentine Republic, par 14.
- 195.
The co-arbitrators stated: “We believe that she had reason to rely on the UBS examination of this question since UBS, under Swiss banking law and the corporate and stock exchange rules to which it is subject, had a strong incentive to ascertain her independence because the company would have encountered legal and regulatory difficulties should it represent her as an independent director and later find that a court, regulatory agency, or stock exchange had determined her to be non-independent director of the UBS board of directors. It was therefore reasonable to rely on the investigation by UBS that no conflict existed between [the arbitrator] and the parties in any of her arbitrations (with the exception of the America Cup) as a result of becoming a UBS director. Consequently, we do not believe that she had a duty to inquire further. Moreover, even if it were established that she did have such an obligation (which we do not believe is the case), her failure to do was in our opinion the result of an honest exercise of judgment and was not part of a pattern of circumstances raising doubts about impartiality. We therefore conclude that [the arbitrator] did not violate ICSID Arbitration Rule 6 with respect of her obligations of disclosure to the parties in these cases.” Suez v. Argentine Republic, par 48.
- 196.
In spite of which, the annulment was ultimately rejected.
- 197.
Compañía v. Argentine Republic, pars 217–224.
- 198.
Using strong wording: “The complications that have subsequently arisen in terms of agony, ICSID credibility, and cost, not only in this case, provide a vivid and abject example of the consequences when an arbitrator accepts a board position in a major international bank without properly investigating and disclosing any connections between the bank and parties to its arbitrations and also neglects its information duties”. Ibid, par 230.
- 199.
The ad hoc committee members stated: “Whether there were any conflicts for the bank’s own purposes was for the bank to decide. Naturally, the bank could subsequently also decide whether to continue with the board appointment or not, but the bank could not decide these issues for others, particularly parties to an arbitration, who from the perspective of their arbitration may have a very different view of conflicts that result or could result for them from the involvement of their arbitrator with the bank.” Ibid, par 225.
- 200.
In favour of transforming arbitrators’ ethical duty to investigate potential conflicts into a positive, legal mandate in the US commercial arbitration context, Windsor (2009).
- 201.
For instance, General Standard 7(a) of the IBA Guidelines on Conflicts of Interest in International Arbitration establishes that “(a) A party shall inform an arbitrator, the Arbitral Tribunal, the other parties and the arbitration institution or other appointing authority (if any) of any relationship, direct or indirect, between the arbitrator and the party (or another company of the same group of companies, or an individual having a controlling influence on the party in the arbitration), or between the arbitrator and any person or entity with a direct economic interest in, or a duty to indemnify a party for, the award to be rendered in the arbitration. The party shall do so on its own initiative at the earliest opportunity”. IBA (2014). The importance of the parties’ duty to inform may increase, for example in the context of third party funding. For these reasons, the following opinion is not shared: “we understand that the rigor of this obligation [the arbitrator’s duty to investigate] must be tempered with the respective obligation of the parties to investigate (...) In this sense, it should not be expected that the arbitrator reveals those facts (...) that the parties may know by conducting a reasonable investigation.” (English translation by the author). “entendemos que el rigor de esta obligación—de investigar del árbitro—debe ser atemperado con la respectiva obligación de las partes de investigar (...) En este sentido no debería esperarse que el árbitro revele aquellos hechos (...) que las partes puedan conocer llevando a cabo una investigación razonable”. Mantilla-Serrano and Pinsolle (2013), p. 899.
- 202.
Standard 7 (d) IBA Guidelines. IBA (2014).
- 203.
Canon 2 B. ABA (2004).
- 204.
ICC (2017a).
- 205.
KLRCA (2017).
- 206.
12405. Disclosures Required of Arbitrators. FINRA (2007).
- 207.
“Investigate by all reasonable means available to him”, Fábrica v. Venezuela, par 19.
- 208.
For instance: Recommendations of the Spanish Arbitration Club (CEA) concerning arbitrator independence and impartiality: “Antes de informar sobre la existencia de Circunstancias de Abstención o de Revelación, el candidato deberá realizar una labor de investigación razonable, con la diligencia exigible a un profesional ordenado.” (Before informing of the existence of circumstances of abstention or disclosure, the candidate must carry out a reasonable investigation, with the diligence of a well-organized professional) (English translation by the author). CEA (n.a.).
- 209.
“Make careful inquiry of whether (the bank) had connections to either party” is Prof. W.’s proposal, which was not accepted in the case. EDF v. Argentine Republic, par 109.
- 210.
Highbury v. Venezuela (2015a), pars 108–109.
- 211.
Fill in notes of the CAM Statement of Independence of the Arbitrator: “When filling in the statement of independence, the arbitrator undertakes to enquire exhaustively into any potential conflict of interest, and any doubt should be resolved in favor of disclosure”. CAM (last accessed in June 2018).
- 212.
Daele (2012), pp. 56–59. Obviously, there is no unanimous opinion on the matter in the context of comparative law. For example, the Japanese Supreme Court has recently rejected the following standard: this duty encompasses the duty to conduct research to uncover any potential sources of conflicts that the arbitrator can find “without substantial effort”. Maeda and Bloomenthal (2018).
- 213.
TAB (2009).
- 214.
Standard 7 (d) IBA Guidelines (2014).
- 215.
Total v. Argentine Republic, pars 137, 139, 141–142.
- 216.
Fábrica v. Venezuela, par 57.
- 217.
EDF v. Argentine Republic, par 105.
- 218.
Dealing with the difficult relationship of some arbitrators with new technologies.
- 219.
It is stated that: “La respuesta de [la árbitro] fue la de que su base de datos está organizada de una forma que solo se refiere a las Firmas de abogados y abogados líderes del caso, pero no a los numerosos consejeros individuales y testigos que pueden aparecer enfrente de ella en una audiencia. (…) [la árbitro] reconoce que “algunos” de los socios actuales de Foley Hoag recuerda claramente haberlos tenido argumentando enfrente de ella, pero que ella no puede relacionar cada uno de esos nombres con casos específicos. Y de esa manera pretende insólitamente arrojarle la carga de revelación que le impone la Regla 6 de las Reglas de Arbitraje a las Demandantes” ([the arbitrator] responded that her database is organized in such a way that it only refers to the law firms and lawyers leading the case, and not to the numerous individual counsellors and witnesses who may appear before her in a hearing. (...) [the arbitrator] acknowledges that she clearly remembers “some” current Foley Hoag members appearing before her, but she can not connect every name to a specific case. She therefore intends to throw the burden of disclosure imposed by Rule 6 of the Arbitration Rules on the plaintiffs, which is most unusual.) (English translation by the author). Highbury v. Venezuela (2005a), pars 92 and 94.
- 220.
Note (2017), par. 23.
- 221.
“Due enquiry” is the terminology used in the various ICC Statements of Impartiality and Independence.
- 222.
The challenge decision in Azurix v. Argentine Republic contains a negative comment regarding the law firm’s files: “one may regret that, in relation to the most recent events, (the arbitrator’s law firm’s) internal systems have not proven to be up to the task”. Daele (2012), p. 50. Daele puts forward a proposal on the scope of the research an arbitrator belonging to a law firm should carry out with respect to business relationships: “at a minimum, the arbitrator should check the names of the parties, legal counsel and known witnesses against the law firm’s conflict database. One level up, the arbitrator could send an e-mail to partners and associates with the same list of parties, counsel and witnesses, to solicit responses as to whether anyone knows of a connection with the persons, entities or matter identified. If a positive response is received, it is incumbent upon the arbitrator to follow-up, assess the information obtained and determine whether disclosure is required”. Daele (2012), p. 54.
- 223.
In the ICSID context, there have been some cases where the disclosure took place after the celebration of the tribunal’s first session. Daele (2012), p. 40.
- 224.
Supra, Chap. 2.4.
- 225.
Among the national case law referring to arbitrators’ on-going duty of disclosure: Tecnimont SPA v. J&P Avax. Fouchard (2016).
- 226.
Compañía v. Argentine Republic, par 222.
- 227.
In the ICSID context, there is no certainty as to when the arbitrator’s duty of disclosure ends. Academic opinion has pointed out that it could be terminated either when the proceedings are closed or could even continue until the final award has been issued. Daele (2012), p. 41.
- 228.
Chan (2007), p. 260.
- 229.
Article 18.5 CAM (2010a).
- 230.
- 231.
Nathan states: “Although arbitral institutions make a fuss about the relationships with the parties, in practice none of them actually seriously review their relationships and take appropriate action except on a selective basis. Even if they do, the matter becomes deeply controversial and leads often to allegations against an activist arbitral institution on bias. Much of the scrutiny is left to the parties themselves (…)”. Nathan (2006), p. 18.
- 232.
Whitesell (2007).
- 233.
In this sense: “Arbitrators must acquirer a thorough understanding of the various statutory directives and ethical codes that are applicable. Arbitrators must familiarize themselves with not only the rules of the arbitral association with which they are affiliated, but any professional or statutory standards that have been incorporated into those rules either expressly or by implication”. Larson (2008), p. 919.
- 234.
Infra, Chap. 6.2.
- 235.
Addressing potential improvements to the IBA Guidelines, Cinelli suggests that the 2014 Guidelines should refer to a presumption of sanction if arbitrators do not disclose facts listed in the waivable red list and the orange list; and the Guidelines should refer to explicit sanctions if the non-disclosed fact is to be included in the non-waivable red list. Cinelli Moreira (2014). In the—different—context of professional membership organizations, the CIArb has published a document explaining how it investigates complaints of misconduct against its members. A CIArb member who acts as arbitrator and commits a significant breach of professional or ethical conduct may be sanctioned by the CIArb Disciplinary Conduct Committee. The list of sanctions is varied (reprimand, suspension, expulsion, payment of the procedure costs, etc.) . CIArb (last accessed in June 2018).
- 236.
It has been stated that other stakeholders are currently paying the price of arbitrators’ misconduct. For instance, Park considers that “the price of misconduct thus falls more directly on the prevailing party, which must suffer annulment of an award for breach of fundamental procedural integrity”. Park (2011), p. 27.
- 237.
For instance, Article 19 CIMA Arbitration Rules affirms: “Appointment and confirmation of Arbitrators. The Court shall confirm the appointment of party-appointed Arbitrators, sole Arbitrators and the Presidents of collegiate Arbitral Tribunals—carried out by the parties, jointly or individually, pursuant to the Rules—provided that the candidates have no reservations as to their availability, impartiality or independence or, should they have made a declaration of any reservation, this has not been the subject of any objections by the parties. The Court shall notify such decisions to the parties and to the Arbitrators. The Court shall ensure compliance with conditions as to the capacity of Arbitrators, and transparency in their appointment, as well as their independence and availability. The Court will assess the relevant circumstances in cases of repeated appointments of one or more Arbitrators by one of the parties or its affiliates or by their representatives or by other members of the Arbitral Tribunal, and in doing so will respect the rights of a fair hearing, presentation of their case and equality of the parties”. CIMA (2015).
- 238.
Assuming that the duty of disclosure is covered for example by the following provision: Article 1.3 of the SIAC Code of conduct for an arbitrator: “The prospective arbitrator confirms that he understands that the Registrar of SIAC will take into account any failure by the prospective arbitrator to discharge his duties to ensure the fair, expeditious, economical and final determination of the dispute when fixing the quantum of fees payable to the arbitrator”. SIAC (2015).
- 239.
Article 7.3 of the CAM Code of Ethics: “Where facts, circumstances and relationships that should have been disclosed are subsequently discovered, the Chamber of Arbitration may deem that this fact is a ground for replacing the arbitrator during the proceedings or not confirming him in other arbitral proceedings ”. In more general terms, Art. 13: “Violation of the Code of Ethics. The arbitrator who does not comply with this Code of Ethics shall be replaced by the Chamber of Arbitration, which may also refuse to confirm him in subsequent proceedings because of this violation”. CAM (2010b).
- 240.
Rogers indicates that he AAA “touts a “one-strike-you’re out policy (…) Unter this policy, any arbitrator whose award is challenged for improper non-disclosure goes on inactive status and will not be nominated to future arbitrations while the judicial challenge is pending. Even after a final judicial decision, the AAA apparently makes a separate determination of whether the arbitrator should ever be restored to active status on the roster. For those institutions that do not have formal or published enforcement policies, they inevitably take into account perceived ethical transgressions when making future appointment decisions”. Rogers (2014) par 2.82.
- 241.
Article 3.6 of the KLRCA Code: “Additionally, Article 5.1 of the 2013 KLRCA’s revised Code of Conduct for Arbitrator states that: “without prejudice to any other rights of the KLRCA, if the Arbitrator is convicted by any court of law for corruption or any unlawful or illegal activities in relation to this Code of Conduct or any other agreement that the Arbitrator may have with the KLRCA, KLRCA shall be entitled to the removal or disqualification of the KLRCA Arbitrator at any time”. KLRCA (2017).
- 242.
- 243.
When dealing with the arbitrator’s duty of disclosure in commercial arbitration, Judge Dominique Hascher states: “In the case of the non-disclosure of a fact that is known by the arbitrator and a party, shared liability between them could be considered. As between the parties, the other party may claim for a breach of the obligation of loyalty, which flows from the arbitration agreement”. Hascher (2012), p. 794. His words find support in French judicial decisions such as Raoul Duval v. V, where the arbitrator was found liable and ordered to pay damages.
- 244.
- 245.
For instance, Article 21 (a) of the ICSID Convention states that: “The Chairman, the members of the Administrative Council, persons acting as conciliators or arbitrators or members of a Committee appointed pursuant to paragraph (3) of Article 52, and the officers and employees of the Secretariat: (a) shall enjoy immunity from legal process with respect to acts performed by them in the exercise of their functions, except when the Centre waives this immunity” ICSID (1966); and the 2017 SIAC Investment Arbitration Rules proclaim an exclusion of liability of any arbitrator “for any negligence, act or omission in connection with any arbitration administered by SIAC”. SIAC (2017).
- 246.
A breach of this principle might be generated by article 11 of the 2014 version of the Draft Constitutive Agreement of the Centre for the Settlement of Investment Disputes of the UNASUR, which addresses the matter of privileges and immunities of the Centre and -in contrast to Article 21 of the ICSID Convention- makes no express reference to conciliator and arbitrator immunity. Fach Gómez and Titi (2016).
- 247.
The idea of shifting the focus from the institutions to the arbitration community by creating an opt-in certification system managed by ICSID does not fit in with the latest developments in the sector. Dimotropoulos (2016), pp. 371–434.
- 248.
Universal v. Venezuela, par 90.
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Fach Gómez, K. (2019). The Duty of Disclosure: An Overview. In: Key Duties of International Investment Arbitrators. Springer, Cham. https://doi.org/10.1007/978-3-319-98128-4_2
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