In early November 2013,1 the Claimant filed a Supplemental Submission dated November 1, 2013, updating its claim of breach of the fair and equitable treatment standard, in particular regarding denial of justice. In this context, the Claimant cited three writings by Professor Paulsson: (i) his expert opinion in Chevron Corporation and Texaco Petroleum Corporation v.The Republic of Ecuador (the "Chevron Expert Opinion");2 (ii) his award as a sole arbitrator in Pantechniki S.A. Contractors & Engineers v. The Republic of Albania (the "Pantechniki Award");3 and (iii) his monograph titled Denial of Justice in International Law4 (the "Monograph," and together with the Chevron Expert Opinion and the Pantechniki Award, "Professor Paulsson’s Writings").
The precise dates on which the Supplemental Submission was filed by the Claimant and received by the Respondent are a contested issue between the Parties, as to which, see ¶¶ 89-90 below.
Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, PCA Case No. 200923, Expert Opinion of Jan Paulsson dated March 12, 2012 (Exhibit CR-7).
Cambridge University Press, 2005 (Annex VILExhibits CR-1 and CR-2).
By letter dated November 18, 2013,5 the Respondent informed the Tribunal and the Claimant of its "intention to send its notice on challenge of Professor Paulsson’s sitting as Chairman of this Tribunal in due course," Noting the references in the Claimant’s Supplemental Submission to Professor Paulsson’s Writings, the Respondent stated that "it appears that Professor Paulsson, Chairman of this Tribunal, has fixed his view as to [the] meaning of the concept 'denial of justice'."
Similar but not identical versions of this letter have been provided by the Claimant and the Respondent in this challenge proceeding. The Respondent filed, as Annex IV to the Challenges, a signed version of this letter dated, on its face, November 16, 2013. However, in the Challenges, the Respondent stated that the letter was dated November 18, 2013. The Claimant filed, as Exhibit CR-9, another signed version of the letter, dated November 18, 2013, together with a cover e-mail of the same date. Given this cover e-mail, and the Respondent’s reference to the November 18 date, 1 understand that the version of the letter filed by the Claimant as Exhibit CR-9 is the version that was actually transmitted by the Respondent to the Claimant, and that this occurred on November 18, 2013.
While specifying that "it does not in any way question [Professor Hobér’s] integrity or competence or detract from, [his] qualifications to serve as an arbitrator in other cases," the Respondent submits that:
the facts... raise an appearance of lack of independence and bias that undermines the confidence in the investor-State system. The arguments laid out here, viewed globally, confirm that in the eyes of the public there is an appearance of a lack of impartiality and independence as well as an appearance of bias and there are circumstances that give rise to justifiable doubts as to the impartiality of [Professor Hobér].9
Respondent’s Challenges, p. 12.
With regard to the first ground for the challenge, the Respondent indicates that Professor Hobér was previously appointed as arbitrator by the Claimant’s counsel in Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan (‟Liman").10 According to the Respondent, this appointment creates the appearance of "a strong relationship of cooperation and reciprocal trust" between Professor Hobér and the Claimant’s counsel and suggests that Professor Hobér is "too familiar with privileged insight into the Claimant’s Counsel’s view’ on relevant legal issues and vice versa."11
Respondent’s Challenges, pp. 7-8
Article 11(1) of the UNCITRAL Rules requires that:
A party who intends to challenge an arbitrator shall send notice of his challenge within fifteen days after the appointment of the challenged arbitrator has been notified to the challenging party or within fifteen days after the circumstances mentioned in Articles 9 and 10 became known to that party.
The Claimant states, without being contradicted by the Respondent, that the information regarding the involvement of Professor Hobér and Clifford Chance in Liman became publicly available on the Energy Charter Treaty website in early 2008 and that excerpts of the Liman award, which must have been necessary for the formulation of the Respondent’s argument that Professor Hobér has fixed views on the question of denial of justice, were published on the ICSID website in May 2013.43 The publication to which both Professor Hobér and Mr. Sheppard contributed was published in 2008, and the conferences in which both Professor Hobér and either Mr. Sheppard or Ms. Schuetz participated took place in May 2011, May 2012 and June 2013.44
Claimant's Response, ¶¶56-57.
Respondent’s Challenges, Annexes IX-XII.
The Respondent challenges Professor Paulsson on the ground of his previously stated views on the concept of ‘denial of justice.’ The Claimant, in addition to denying that Professor Paulsson’s previously stated views give rise to justifiable doubts as to his independence and impartiality in the present case, submits that the challenge is untimely according to Article 11(1) of the UNCITRAL Rules and therefore inadmissible,
Both Parties cite H.E. President Peter Tomka’s recent challenge decision in CC/Devas.80 In that decision, President Tomka stated that:
... knowledge of the law or views expressed about the law are not per se sources of conflict that require removal of an arbitrator; likewise, a prior decision in a common area of law does not automatically support a view that an arbitrator may lack impartiality. Thus, to sustain any challenge brought on such a basis requires more than simply having expressed any prior view; rather, I must find, on the basis of the prior view and any other relevant circumstances, that there is an appearance of pre-judgment of an issue likely to be relevant to the dispute on which the parties have a reasonable expectation of an open mind.81
Respondent’s Challenges, pp. 2-3; Claimant’s Response, ¶94.
CC/Devas (Mauritius) Ltd. and others v. The Republic of India, ICSID Case No. ARB/07/14, Decision on the Proposal for Disqualification of Professor Francisco Orrego Vicuña dated December 13, 2013, ¶58 (Exhibit CRA-6).
HEREBY DISMISS the challenge brought against Professor Paulsson.
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