"Although there are no circumstances that, in my opinion, should affect my reliability to render an independent judgement in this case, I consider my duty to disclose the following facts:
- Claimant counsel in the case (Dr. Sabine Konrad) acted as counsel representing the party that appointed me in the Opic v Venezuela case (ICSID Case No. ARB/10/14). The case was initiated in 2010 and an award was rendered in 2013.
- I have been appointed in three cases to which Respondent is a party. While two of those cases, the Charanne and Isolux SCC cases ended in 2016, I also act in the Steag v. Kingdom of Spain case (ICSID Case ARB/15/4), which is still pending.
To the best of my knowledge, I have had no other present or past relationship with the parties or counsel acting in the present case."
i. 17 April 2020 - the Claimants to submit a response to the Respondent's Proposal;
ii. 24 April 2020 - Prof. Tawil to furnish any explanations;
iii. 1 May 2020 - the Parties to submit any further observations on the Proposal.
a. That Prof. Tawil had three previous appointments by investors in arbitration cases against Spain14 that allegedly share multiple common factual and legal issues with the present case,15 and
b. That Prof. Tawil prejudged core issues arising in the present case, as evidenced by his dissenting opinions rendered in Charanne and Isolux.16
(a) on one hand, a possible economic benefit of prospective regular appointments by claimants.
(b) on the other hand, the possibility that the arbitrator may be influenced by factors outside of the record in the instant case resulting from knowledge derived from similar or identical cases.17
"multiple appointments of an arbitrator by a party or its counsel constitute a consideration that must be carefully considered in the context of a challenge"
"In a dispute resolution environment, a party's choice of arbitrator involves a forensic decision that is clearly related to a judgment by the appointing party and its counsel of its prospects of success in the dispute. … multiple appointments of an arbitrator are an objective indication of the view of parties and their counsel that the outcome of the dispute is more likely to be successful with the multiple appointee as a member of the tribunal than would otherwise be the case."20
i. the Tribunal's jurisdiction to decide on intra-EU disputes (a German Claimant investors against the Kingdom of Spain) pursuant to the ECT;
ii. whether Royal Decree 661/2007 ("RD 661/2007") and Royal Decree 1578/2008 ("RD 1578/2008") were issued with the aim of attracting investors and whether they created, by themselves, legitimate expectations for investors;
iii. whether the regulatory regime at the time of the investment constituted a guarantee of special remuneration that excluded any subsequent modifications, and
iv. the fact that in his previous decisions, Prof. Tawil relied on two "very concrete elements", namely (i) the temporary scope of RD 661/2007; and (ii) the fact that it was intended to attract certain groups of investments, both elements having been underscored by the Claimants in their Request for Arbitration.
i. the three previous proceedings on which Prof. Tawil has been appointed by the claimants in cases brought against Spain;
ii. the essential similarities among the four proceedings;
iii. the fact that in two of these cases Prof. Tawil has already expressed his opinion in a way that allows no room for a different decision in the present proceeding;35 and
iv. the substantial similarities of Prof. Tawil's opinions in the Charanne and
Isolux cases (including a cross-reference in the latter to his earlier dissent in the former),36 and the "blatant lack of reference" in both of his dissenting opinions in both cases to the evidence on record.
"(…) after carefully reviewing the parties' submissions on the matter I find the proposal for my disqualification with no merits.
I hereby reaffirm my independence and impartiality to act in this case and fully confirm my December 5, 2019 declaration."
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.
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