"The disqualification is grounded upon the, respectfully said, lack of the qualities required by Article 14(1) of the ICSID Convention, evidenced by different circumstances described herein below and which manifestly preclude the challenged arbitrator from being relied upon to exercise independent judgment."
The 13 February 2018 letter also referred to what it said was Mr Born's "biased examination" of counsel and witnesses in two other cases, Masdar Solar & Wind Cooperatief U.A. v Kingdom of Spain (ICSID Case No. ARB/14/1) ('Masdar'), and KS Invest GmbH and TLS Invest GmbH v Kingdom of Spain (ICSID Case No. ARB/15/25) ('KS Invest'). Respondent sought "for the sake of good procedural order" permission to introduce into the record the relevant parts of the transcripts of the hearings in Masdar and KS Invest, and brief comments thereon by Respondent.
"... the Kingdom of Spain expressly reserves its right to expand the arguments set forth in this Request for Disqualification, in particular after receiving the explanations of the challenged arbitrator in accordance with Arbitration Rule 9(3)."
"Spain's proposal to disqualify Mr. Born is utterly groundless. It is 'based' in its entirety on: 1) Mr. Born's dissenting opinion in an award involving the Czech Republic; and 2) unspecified allegations of 'bias' that Spain says can be found in questions posed by Mr. Born at hearings in other cases against Spain (held in September 2016 and October 2017), but which Spain has failed to disclose on the spurious ground that it needs this Tribunal's 'permission' to submit the relevant transcripts."
i. that Mr Born's dissenting opinion in the Wirtgen case demonstrated that he has already reached an immutable and biased opinion on issues at the core of the present arbitration, notably on the question of the nature and effect of government commitments to maintain prices paid for electricity, and on the question of the applicability and effect of EU Law;
ii. that Mr Born's questioning of counsel in the Masdar case and of a fact witness in the KS Invest case was intended to obtain admissions on questions that Mr Born had already prejudged, and demonstrated Mr Born's unwillingness or apparent inability to consider alternative viewpoints.
"47. In my view, it is essential to appreciate this background, both regulatory and commercial. Put simply, the entire renewable energy sector in the Czech Republic (as in a number of other states) was based in the commitment of the state, like the commitments of other states, that the prices paid for electricity produced from renewable energy sources would be maintained unchanged (except for upward adjustments to reflect inflation) for a specified period of time, regardless of market conditions or regulatory judgments. In turn, this provided investors and lenders with the security that was otherwise absent in the renewable energy sector." [Emphasis supplied by Respondent]
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. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV."
(1) 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."
While the English version of Article 14 of the ICSID Convention refers to "independent judgment," and the French version to "toute garantie d'independance dans l'exercice de leurs fonctions" (guaranteed independence in exercising their functions), the Spanish version requires "imparcialidad de juicio" (impartiality of judgment). Given that all three versions are equally authentic, it is accepted that arbitrators must be both impartial and independent.3
(1) reject Respondent's Proposal to Disqualify Gary B. Born;
(2) invite both Parties to file by no later than 30 April 2018 supplementary submissions as specified in paragraph 60 above; and
(3) determine that a final decision on the costs associated with the Proposal will be made at a later stage.
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