• B3 Croatian Courier Cooperatief U.A. v. Republic of Croatia (ICSID Case No. ARB/15/5);
• Addiko Bank AG and Addiko Bank d.d. v. Republic of Croatia (ICSID Case No ARB/17/37) ("Addiko" or "Addiko v. Croatia").7
• Dr. Alexandrov is co-counsel with Sidley Austin LLP in a commercial case where Mr. Gary Born, partner at WilmerHale and counsel to the Claimants, serves as the arbitrator appointed by Dr. Alexandrov’s client.
• Dr. Alexandrov was appointed by WilmerHale as the claimant’s co-arbitrator in J&P-AVAX S.A. v. Lebanese Republic (ICSID Case No. ARB/16/29).
• Mr. Gary Born was appointed as an arbitrator in Philip Morris Brand Sárl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7). Though the respondent prevailed in that case, Mr. Born issued a dissenting opinion in favor of the claimants.
• WilmerHale nominated Dr. Alexandrov as the claimant’s arbitrator in Addiko.
• WilmerHale appointed Dr. Alexandrov as the claimant’s arbitrator in an investment treaty arbitration GRAND EXPRESS Non-Public Joint Stock Company v. Republic of Belarus (ICSID Case No. ARB(AF)/18/1) ("Grand Express"). Dr. Alexandrov did not disclose the appointment in this case.20
• SolEs Badajoz GmbH v. Kingdom of Spain (ICSID Case No. ARB/15/38), in which Dr. Alexandrov resigned. According to the Respondent, this resignation is a clear indication of the legitimacy of its concerns about Dr. Alexandrov’s ongoing use of The Brattle Group in two cases in which he acted as counsel and his 15-year relationship with The Brattle Group;
• Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan (ICSID Case No. ARB 12/1) in which the respondent twice proposed Dr. Alexandrov’s disqualification due to the claimant’s engagement of The Brattle Group; and
• Eiser Infrastructure Limited and Energia Solar Luxembourg S.á.r.l. v. Kingdom of Spain (ICSID Case No. ARB/13/36), in which Dr. Alexandrov’s failure to disclose his relationship with The Brattle Group is raised as a ground for annulment of that award.25
exists a relatively high burden for those seeking to challenge ICSID arbitrators. The Convention’s requirement that the lack of independence be "manifest" necessitates that this lack be clearly and objectively established. Accordingly, it is not sufficient to show an appearance of a lack of impartiality and independence.28
Second, the decision in Caratube v. Kazakhstan, on which the Respondent relies, is unavailing. There, the claimants challenged Kazakhstan’s co-arbitrator, Mr. Bruno Boesch, on the basis that he had previously served in the same role in Ruby Roz v. Kazakhstan42, an UNCITRAL arbitration that was brought by a company owned by the brother-in-law of the owner of Caratube. Caratube and Ruby Roz were therefore not connected by an abstract question of law, but by a significant overlap in the underlying factual matrix, involving the same government measures vis-a-vis two entities in the same group of companies.43
[T]here is a need immediately to stress that the situation where an arbitrator has possible prior knowledge of facts relevant to the outcome of the dispute must be carefully distinguished from the situation where an arbitrator has possible prior exposure to legal issues that would be equally relevant in that regard.46
Such an inference is, so far as we can see, bereft of any basis in the facts of this proceeding; what we have here is simply a supposition, a speculation merely. It is commonplace knowledge that in the universe of international commercial arbitration, the community of active arbitrators and the community of active litigators are both small and that, not infrequently, the two communities may overlap, sequentially if not simultaneously. It is widely accepted that such overlap is not, by itself, sufficient ground for disqualifying an arbitrator. Something more must be shown if a challenge is to succeed. In the instant case, that 'something more' has not been shown by the Claimant.51
In the Claimants’ view, this reasoning is directly applicable here.52
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 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.
It is commonplace knowledge that in the universe of international commercial arbitration, the community of active arbitrators and the community of active litigators are both small and that, not infrequently, the two communities may overlap, sequentially if not simultaneously. It is widely accepted that such an overlap is not, by itself, sufficient ground for disqualifying an arbitrator. Something more must be shown if a challenge is to succeed.83
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