Each [of the] Contracting Parties shall appoint one member of the arbitration tribunal within two months of receiving the arbitration notice. Those two tribunal members shall then select a citizen of a third country who with the consent of both Contracting Parties shall be appointed as a chairperson of the tribunal within one month of the appointment of the two other tribunal members.
Russian-Ukraine BIT, ECF No. 1-8, at art. 10.
A prospective arbitrator shall disclose to those who approach him in connection 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 the circumstances.
1976 UNCITRAL Arbitration Rules, art. 9.
The cases upon which Belize relies address a provision of the Federal Arbitration Act (FAA) that permits a district court to vacate a domestic arbitration award "where there was evident partiality or corruption in the arbitrators." 9 U.S.C. § 10(a)(2) For the reasons set forth below, Belize has failed to allege conduct that would warrant denial of enforcement under our cases interpreting that standard. But even if the alleged conduct did satisfy the FAA standard, we would be unable to deny enforcement in this case. As we have explained above, we may refuse to enforce this international arbitration award "only on the grounds explicitly set forth in Article V" of the New York Convention, TermoRio, 487 F.3d at 935, and the only potentially relevant ground is that enforcement of the arbitration award "would be contrary to the public policy of [the United States]," New York Convention art. V(2)(b). As we have also explained, this requires Belize to show that [an arbitrator's] participation in the arbitration violated this country's "most basic notions of morality and justice." TermoRio, 487 F.3d at 938.
Belize Bank Ltd. v. Govt. of Belize, 852 F.3d 1107, 1112 (D.C. Cir. 2017)
Whether or not the Paris Court applies a slightly different test in substance to the one which is operative here, like the Paris Court I do not consider that it can at all be said that a single appointment in the course of the seven years the arbitration lasted would or might provide the basis for a reasonable apprehension about the independence or impartiality of Professor Vicuña; and still less that they were likely to give rise to justifiable doubts so as to trigger the duty of disclosure. The argument that this appointment does so is in reality premised on the supposed fair-minded and informed observer being either not entirely fair-minded or not entirely informed, or both.
High Court Decision, ECF No. 43-1, at ¶ 84. The High Court concluded that there was "no failure to disclose" and "no failure of arbitral procedure." Id. at ¶ 103.
The Court does not believe that section 1(d) of Article V was intended, as CBG argues, to permit reviewing courts to police every procedural ruling made by the Arbitrator and to set aside the award if any violation of ICC procedures is found. Such an interpretation would directly conflict with the "pro-enforcement" bias of the Convention and its intention to remove obstacles to confirmation of arbitral awards.... Rather, the Court believes that a more appropriate standard of review would be to set aside an award based on a procedural violation only if such violation worked substantial prejudice on the complaining party.
Id. (emphasis in original) (internal citations omitted).
As the Tribunal found, at the time Tatneft acquired the AmRuz and SeaGroup shares, Ukraine had not irreversibly stripped them of their value. For that reason alone, the Tribunal concluded that Tatneft did not acquire these shares solely to augment its recovery against Ukraine. Moreover, the Tribunal also found that AmRuz and SeaGroup were both entitled to pursue their own claims against Ukraine under different treaties... [and] [f]inally, the Tribunal expressly found that Tatneft did not act with an improper motive.
Pao Tatneft Reply, ECF No. 35, at 27 (emphasis in original); see id. at 15 (with additional cites to the Jurisdiction Decision).
Enforcement of the Merits Award would lend the Court's power to wrongdoers: Amruz and Seagroup, which unlawfully acquired their shares in Ukratnafta using promissory notes in violation of Ukrainian law; and Tatneft, which acquired shares of Amruz and Seagroup in bad faith, for a remarkable price of USD 81 million, despite that the shares had already been transferred to Naftogaz and were otherwise disputed in ongoing litigation, and with the ulterior motive of suing Ukraine for damages.
Ukraine Opp'n., ECF No. 22, at 20. The Court notes that these are the same types of allegations discussed and rejected in subsections 1 and 2 above.
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