Articles 57 and 14(1) of the ICSID Convention do not require proof of actual dependence or bias; rather, it is sufficient to establish the appearance of dependence or bias. All relevant facts shall be taken into account in establishing the appearance of dependence or bias. The legal standard applied to a proposal to disqualify an arbitrator is an 'objective standard based on a reasonable evaluation of the evidence by a third party […]7
There thus exists a relatively high burden for those seeking to challenge ICSID arbitrators. The Convention's requirement that the lack of independence be "manifest" necessitates that this lack be clearly and objectively established. Accordingly, it is not sufficient to show an appearance of a lack of impartiality or independence.54(Emphasis in original)
The legal standard applied to a proposal to disqualify an arbitrator is an 'objective standard based on a reasonable evaluation of the evidence by a third party.' As a consequence, the subjective belief of the party requesting the disqualification is not enough to satisfy the requirements of the Convention.55 (Emphasis in original)
By virtue of the different factual matrixes, the conduct complained of arises out of distinct circumstances and any factual determinations in the Rizzani case will have no bearing on the present proceedings. Contrary to the circumstances in the Caratube case, the claimants in the two cases are not related, there will be no overlap between the evidence that is presented to the Tribunal in either case, and the allegations are made under different contracts and different investment treaties.88
a. As regards the first case, Orange SA, Mr. Veeder was appointed by agreement of the parties and Prof. Douglas served as one of the co-arbitrators. Baker & McKenzie LLP was not involved in this case. Further, this case was suspended soon after the constitution of the tribunal and was discontinued in 2016 following an amicable settlement between the parties.109
b. In the second case, Koch, Mr. Veeder was appointed as presiding arbitrator by agreement of the parties. Prof. Douglas replaced the initial co-arbitrator and the case was partially reheard for the benefit of Prof. Douglas. The tribunal issued its award on October 30, 2017, by a majority, and Prof. Douglas dissented from the award. Again, Baker & McKenzie LLP was not involved in this arbitration.110
c. As regards the third case, Mercer, Mr. Veeder notes that he was appointed jointly by the parties as presiding arbitrator. He served with Prof. Douglas on that tribunal which rendered an award on March 6, 2018, with a supplementary decision on December 10, 2018. Baker & McKenzie LLP was not involved in the arbitration.111
A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14.
Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.
I confirm that I am currently sitting as an arbitrator in another ICSID case involving the State of Kuwait: Rizzani de Eccher, OHL & Trevi v State of Kuwait (ICSID Case No. ARB/17/8). This is a matter of public record. I do not consider that this is a circumstance that might cause my reliability for independent judgment to be questioned by a party but I confirm this fact nonetheless in the interests of full transparency.
As a starting point, the decisions in Tidewater and Raiffeisen are instructive. In Tidewater, the unchallenged arbitrators stated that "multiple appointments as arbitrator by the same party in unrelated cases are neutral, since in each case the arbitrator exercises the same independent function."131 In Raiffeisen, the Chairman found that "the same principle applies … to multiple appointments by different claimants, even if they are in cases against the same respondent."132 The same principle must apply in this case as well.
In Caratube, the unchallenged arbitrators considered whether the participation of the respondent-appointed arbitrator in an UNCITRAL arbitration (Ruby Roz) and appointed by the same respondent, would put into question his impartiality and independence due to the similarities between the two cases.134 The unchallenged arbitrators determined that there was a "significant overlap in the underlying facts" between Caratube and Ruby Roz.135 In particular: (i) there was a direct personal and commercial relationship between the claimants in the two cases; (ii) an overlap in the witnesses submitting statements in the two cases; (iii) the Ruby Roz tribunal had already formed an opinion as to credibility with respect to some of the witnesses giving evidence in the Caratube case; and (iv) in both cases the respective claimants had relied on certain identical factual allegations regarding events underlying state criminal investigations and expropriation of the related claimants and their companies.136 As a result, the unchallenged arbitrators found that a reasonable and informed third party would find it highly likely that the challenged arbitrator would prejudge the legal issues in Caratube based on his knowledge of the facts in the Ruby Roz case.137
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