In investor-State arbitration, the tribunal’s chair (or the “president” or “presiding arbitrator”) refers to the presiding arbitrator. In addition to the adjudication function performed by all co-arbitrators, the chair usually also manages the case process, e.g. organising procedural conferences, presiding over the tribunal’s discussion, drafting the orders, decisions and award, etc.
II. Appointment method
A three-person tribunal is more common in investment arbitration.1 Subject to the provisions in the applicable investment treaty and the arbitration rules, the main methods of appointing the tribunal’s chair include:
Various institutions and officials may serve as an appointing authority, including the Chairman of the Administrative Council of ICSID, the ICSID Secretary-General,6 the Secretary-General of the Permanent Court of Arbitration,7 the President of the Court of International Arbitration of the International Chamber of Commerce,8 and the President of the International Court of Justice.9
III. Requirements to the tribunal's chair
Following the general criteria applied to co-arbitrators, the presiding arbitrator is often required to be impartial and independent under most arbitration rules.12 Recent investment treaties have specified the qualifications of the chair, e.g. nationality other than the disputing parties, expertise and/or experience in public international law, international investment law, settlement of international disputes, etc.13 In practice, the disputing parties may, however, waive the nationality and other requirements by agreement14 and tailor the qualities that they believe the chair should possess.
In waiving the requirements, the parties must be conscious of the mandatory provisions of the applicable treaties. In Urbaser SA & Anor v. Argentine Republic, for instance, the parties originally agreed to waive the nationality requirement of the tribunal members.15 The waiver was insufficient, however, to circumvent Article 39 of the ICSID Convention, which requires the majority of the tribunal members to have a nationality different than the nationality of the parties to the dispute. The nationality requirement of Article 39 does not apply only if “each individual member of the Tribunal has been appointed by agreement of the parties.” In the absence of the parties’ agreement on each member of the tribunal, ICSID refused to accept the designation of the arbitrators having a nationality of the parties.16
It is important for a tribunal’s chair in investment arbitration to ensure a fair and efficient arbitration process. See further Arbitrator’s Duties.
As such, in line with the applicable arbitration rules, the applicable treaty and the parties’ agreement, the power and function of the tribunal’s chair may include:
The parties are generally advised to avoid a sitting of the tribunal in the absence of the president. Under the ICSID Convention and the Rules, the decisions of the tribunal must be made by an absolute majority of its members.24 A possibility remains, as some commentators have suggested, that a decision may be reached in the absence of the president, as such president may be considered in “abstention” and thus be counted as a negative vote.25
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