1. In June 2010, I was appointed by the Government of India as arbitrator to the seven-member Court of Arbitration under the 1960 Indus Waters Treaty in the proceedings instituted by the Government of Pakistan. The Partial Award in the case was rendered on February 18, 2013 (the text is available on the PCA website).
2. The International Court of Justice is at present deliberating in the Maritime Dispute case (Peru v. Chile) in which Professor Orrego Vicuna has been chosen by Chile as Judge ad hoc.
A party who intends to challenge an arbitrator shall send notice of his challenge within fifteen days after the appointment has been notified to the challenging party or within fifteen days after the circumstances mentioned in articles 9 and 10 became known to that party.
While the interlinking of treaty and customary law requirements in respect of necessity has been held to be a manifest error of law in the context of a particular case [referring to the decision of the CMS annulment committee], one may respectfully wonder whether the error of law might not lie with the approach suggesting that a rather vague clause of a treaty might be able to simply do away with the obligations established under the same treaty.
In this light the discussion about whether the availability of the defense should first be examined under the treaty and, only if unsuccessful, examined next under customary international law, appears to be somewhat circular. If the treaty precludes the defense there is no second shot at it under customary law. If it provides for an exception and this is not defined, its examination under customary international law will be the first and only shot supplementing the treaty vacuum. It is the two shots that would appear to run counter to the strictness of the requirements of international law.
HEREBY SUSTAIN the challenge brought against the appointment of Professor Francisco Orrego Vicuna by the Respondent in its Request of May 20, 2013, and
HEREBY DENY the challenge brought against the appointment of the Hon. Marc Lalonde also brought by the Respondent in its Request of May 20, 2013.
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