a. the various language versions of the BIT, including the existence of a Turkmen version of the BIT;
b. the authenticity of the various language versions of the BIT;
c. the accuracy of the English translations of each of the authentic versions of the BIT;
d. the negotiating history of the BIT, including travaux préparatoires, if any; the Parties are invited to produce witness testimony as appropriate;
e. the rules of treaty interpretation applicable to the BIT, including the issue of whether the fact that the treaty creates rights for third party beneficiaries (private investors) affects in any way the interpretation of the treaty; and
f whether the objection put forward by Respondent on the basis of its interpretation of Article VII(2) of the BIT raises an issue of jurisdiction or an issue of admissibility.1
At this time, however, in reliance upon Ms. Lamm’s assurances, Respondent seeks no further action from the Tribunal with regard to Ms. Lamm’s continued participation as an arbitrator. Turkmenistan reserves all of its rights, remedies, defenses and objections in regard to this Arbitration, including with respect to the matters raised in its letter of December 18,2012.
[...] the Tribunal considers that it is not in a position to preclude the Claimant from offering the documents to the Respondent for review if it so wishes; however, it will be similarly for the Respondent to decide whether it wishes to review or indeed receive them.
The Tribunal’s ruling is without prejudice to its decision as to the legal consequences, if any, of the Claimant’s failure to produce the documents earlier and/or the Respondent’s decision as to how it chooses to deal with the documents. The Tribunal will take a view on these issues, as appropriate, if either Party offers to produce any of the documents in question as evidence at a later stage of the arbitration.
To the best of my knowledge I am not aware of any past or present professional, business or other relationship with the Claimant.
The Respondent has appointed me as arbitrator in two other cases (Adem Dogan v. Turkmenistan (ICSID Case No. ARB/09/9), which is pending following the Tribunal’s decision on jurisdiction, of 29 February 2012, and Kilic Insaat Ithalat Ihracat Sanayi ve Ticaret Anonim Sirketi v. Turkmenistan (ICSID Case No. ARB/10/1)).
I also wish to declare that I have been appointed as arbitrator by Curtis, Mallet-Prevost on three other occasions (the two cases mentioned above, and Opic Karimum Corporation v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/10/14)). None of these appointments have come in the past three years.
I have been appointed as arbitrator by the Republic of Turkey in a case before the Arbitration Institute of the Swedish Chamber of Commerce, in which the Republic of Turkey is represented by the law firm of Lalive.
I do not consider that these circumstances should cause my reliability for independent judgment to be questioned by a party. In this regard, I have carefully considered the Claimant’s letter of 30 April, requesting that I decline to accept this appointment, together with the Decision of 20 March 2014 in Caratube International Oil Company LLP & Mr. Devincci Salah Hourani v Republic of Kazakhstan (ICSID Case No. ARB/13/13), to which the Claimant has drawn my attention. As far as I am aware, the facts in the present case are not the same or similar to those that pertained in any other case in which I have sat as arbitrator, so that the circumstances that led to the Decision of 20 March 2014 appear to be materially different. Further, I note the contents of paragraph 65 of that Decision, and the important distinction between "possible prior knowledge of facts relevant to the outcome of the dispute", on the one hand, and "the situation where an arbitrator has possible prior exposure to legal issues that would be equally relevant in that regard".
Since first accepting appointment as arbitrator in an ICSID case, in 2007, I have declined to accept any new instructions to act as counsel in any new investment treaty arbitration brought under the ICSID Convention.
independently of [the challenged arbitrator’s] intentions and best efforts to act impartially and independently - a reasonable and informed third party would find it highly likely that, due to his serving as arbitrator in the [previous arbitration] and his exposure to the facts and legal arguments in that case, [the challenged arbitrator’s] objectivity and open-mindedness with regard to the facts and issues to be decided in the present arbitration are tainted.18
"There is ‘neither bias [nor] partiality where the arbitrator is called upon to decide circumstances of fact close to those examined previously, but between different parties, and even less so when he is called upon to determine a question of law upon which he has previously made a decision."35
to sustain any challenge brought on such a basis requires more than simply having expressed any prior view; rather, I must find, on the basis of the prior view and any other relevant circumstances, that there is an appearance of prejudgment of an issue likely to be relevant to the dispute on which the parties have a reasonable expectation of an open mind.41
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.
Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the field 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.
(a) Claimant’s proposal to disqualify Professor Sands is dismissed;
(b) The determination and attribution of costs incurred in connection with this decision are reserved for further proceedings; and
(c) As from the date of this decision, the suspension of the proceedings pursuant to Arbitration Rule 9(6) is terminated.