I have seen the circular notification from the Secretary to the Tribunal of a renewed challenge by the Claimant Parties to the appointment of my coarbitrator, Mr VV Veeder, in the wake of the rejection by the Chairman of the Administrative Council of the earlier challenge to both Mr Veeder and me. The Secretary's letter indicates that, under the terms of Article 58 of the ICSID Convention and ICSID Arbitration Rule 9, the decision on this new challenge falls to be decided by Me. Mourre and myself, as the two remaining members of the Tribunal.
Notwithstanding the above, it does not seem to me right that I should sit on this challenge.
If I were to do so, any ruling I proceeded to make on the challenge would lay itself open to an accusation that I lacked the necessary objectivity and impartiality, either because I had just myself been under challenge by the same Parties, or because both the old and the new challenges implicate directly the relationship between members of the same Barristers' Chambers, as is the case with Mr Veeder and myself.
Furthermore, and perhaps more important still, the new challenge, based as it is on the same ground as the old challenge, is not dissimilar to an appeal against the rejection of the latter.
For all of the above reasons, it would be more conducive to the health of the arbitration system under the Convention and the Rules if the new challenge, like the old, were to be heard and decided by the Chairman of the Administrative Council. That would not, in my view, be in any sense incompatible with the provisions of the Convention and the Rules, taken in their entirety.
Since writing the above, I have seen a copy of the further letter from counsel for the Claimant Parties, dated 24 February 2017. While I do not accept the argument as to an 'objective conflict of interests,' the letter serves nevertheless to reinforce my view that the only acceptable solution is for the new challenge to Mr Veeder to be decided by the Chairman of the Administrative Council.
Please feel at liberty to circulate the terms of this letter as you think fit.
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.
PRESIDENT VEEDER: I am greatly troubled by the circumstances in which Professor Greenwood was instructed as counsel by the Claimant last autumn, and that this development was not disclosed to the Tribunal, ICSID or the Respondent until recently.
I do not consider that I can continue in this arbitration as Chairman of this Tribunal unless both parties expressly consent to my doing so now, and Professor Greenwood withdraws from this case with immediate effect.
I thank the parties for their exchanges. Having carefully considered those exchanges, I cannot, in these circumstances, continue as President of this Tribunal, and accordingly I shall forthwith submit my resignation as a member of this Tribunal in accordance with Article 14, subparagraph (3) of the arbitration additional facility rules.
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