"The authorities show that in order to establish an issue estoppel four conditions must be satisfied, namely (1) that the judgment must be given by a foreign Court of competent jurisdiction; (2) that the judgment must be final and conclusive on the merits; (3) that there must be identity of parties; and (4) that there must be an identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings...".
"UKRAINE claims that Mr. Orrego Vicuña, President of the arbitral tribunal, repeatedly failed in his duty to inform the parties by not revealing, on the one hand, that he had been appointed by TATNEFT's law firm in 2011 in another investment arbitration and...".
"Whereas... Mr. Orrego Vicuña was appointed, by a party represented by the law firm Cleary Gottlieb Steen, in another investment arbitration, filed on 22 July 2011 before the International Centre for Settlement of Investment Disputes, as is clear from the publication made by the Centre on its website;
Whereas UKRAINE faults Mr. Orrego Vicuña for not having disclosed this appointment made by a law firm that was counsel to TATNEFT;
But whereas UKRAINE fails to demonstrate how a single appointment in the course of the seven years that the arbitration lasted, which did not characterise a history of business between this arbitrator and this law firm, had the potential to raise a reasonable doubt about the independence and impartiality of Mr. Orrego Vicuña.
Whereas the ground must be set aside."
"The right to ascertain the precise issue decided, by examination of the court's judgment, of the pleadings and possibly of the evidence, may well, in the case of courts whose procedure, decision-making technique, and substantive law is not the same as our own, make it difficult or even impossible to establish the identity of the issue there decided with that attempted here to be raised, or the necessity for the foreign decision. And I think that it would be right for a court in this country, when faced with a claim of issue estoppel arising out of foreign proceedings, to receive the claim with caution in circumstances where the party against whom the estoppel is raised might not have had occasion to raise the particular issue."
"Recognition or enforcement of the award may be refused if the person against whom it is invoked proves… that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place."
"In the event the dispute cannot be resolved through negotiations within six months as of the date of the written notification as mentioned in Item 1 hereof above, then the dispute shall be passed over for consideration to:
c) an 'ad hoc' arbitration tribunal, in conformity with the Arbitration Regulations of the United Nations Commission for International Trade Law (UNCITRAL)."
"A prospective arbitrator shall disclose to those who approach him in connexion with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, once appointed or chosen, shall disclose such circumstances to the parties unless they have already been informed by him of these circumstances."
"1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence …".
a) the arbitrators were required to disclose circumstances that were likely to give rise to justifiable doubts as to their impartiality or independence; also
b) the duty of disclosure would continue to apply after appointment, as it did before appointment. This was a point which is made in the AWG award to which I was referred.
(1) Tatneft says that the disclosure issue is neither one as to the composition of the tribunal nor as to procedure. It is not alleged to be a failure of composition, because that arises out of the next step -- apparent bias. At the same time what is contemplated by section 103(2)(e) is a failure in the actual arbitration procedure -- that is the procedure applying to the substantive arbitration.
(2) Tatneft submits that the language of justifiable doubts, which is key to this consideration, mirrors the Arbitration Act section 24 and that shows a need for objective assessment, something which gives a real question mark as to bias and means that the two tests overlap with each other and with the common law test.
(3) Tatneft submits that the requirement is, effectively, that the fair-minded and informed observer be made to think of the possibility of actual bias and that this was a very different case to the Halliburton case on which so much emphasis has been placed by Ukraine.
(4) Tatneft prays in aid that finding in Halliburton both by the Court of Appeal and by Popplewell J that one reference via a common party is not enough and notes that in that case there was the additional factor that the arbitrations in question were very closely related, both arising out of the Deepwater Horizon incident, and still even so that was not enough. Here Tatneft says this is a single appointment case which one can cross-check against what the IBA has to say, which is that three appointments within three years from the same counsel may be something which ought to be disclosed, and this obviously falls far short of that. Also, Tatneft reminds me that this is a form of arbitration where there is effectively no secrecy and the parties who are involved and the arbitrators who are involved were always going to be a matter of public record, and that of course is relevant to, they say, to the question of what the fair-minded and informed observer would have to say.
"We do not consider this to be a matter of significance, essentially for the reasons given by the judge at - of his judgment. In essence, the argument goes too far and would mean that a remuneration benefit which an arbitrator receives from his appointing party (even indirectly) is a disqualifying benefit. If that were so it would equally apply to party-appointed arbitrators in a single arbitration and would be wholly inconsistent with the manner in which commercial arbitration is routinely conducted. The alleged 'secrecy' of the benefit adds nothing. Either the benefit is disqualifying or it is not. If it is, then objection could be made to every party-appointed arbitrator, which would be absurd."
Already registered ?