ADDITIONAL FACILITY ARBITRATION

Either party may propose the disqualification of a Tribunal member once the Tribunal has been constituted (Articles 14 and 15 of the Arbitration (Additional Facility) Rules).

A proposal to disqualify an arbitrator must be made promptly and, in any event, before the proceeding is declared closed (Article 15 of the Arbitration (Additional Facility) Rules). Failure to object promptly will result in the rejection of the proposal.

Grounds for Disqualification

An arbitrator may be disqualified on the ground of incapacity, manifest lack of the qualities required by Article 8 of the Arbitration (Additional Facility) Rules or ineligibility for appointment under Article 7 of the Arbitration (Additional Facility) Rules (Articles 14 and 15(1) of the ICSID Arbitration (Additional Facility) Rules).

Article 7 of the Arbitration (Additional Facility) Rules contains the nationality requirements applicable to members of a Tribunal.

Article 8 of the Arbitration (Additional Facility) Rules specifies the qualities required of arbitrators in Additional Facility proceedings.  They must possess high moral character, recognized competence in the fields of law, commerce, industry or finance, and reliability to exercise independent judgment.

The most frequently alleged ground for disqualification of a member of a Tribunal is manifest lack of the qualities required by Article 8 of the Arbitration (Additional Facility) Rules.  In particular, lack of reliability to exercise independent judgment.
The applicable legal standard for disqualification is an objective one, based on how a reasonable third party would evaluate the evidence. The subjective belief of the party proposing the disqualification does not satisfy the legal standard under the ICSID Convention.  While the IBA Guidelines on Conflicts of Interest are not binding, they may serve as useful references in a challenge under the ICSID Convention.

Procedure

Proposal to Disqualify

The challenge procedure starts with the submission by a party of a proposal to disqualify one or more members of the Tribunal.  The proposal is filed with the ICSID Secretary-General. A proposal to disqualify suspends the proceeding.  Once received, the proposal is transmitted to the Tribunal or to the Chairman of the ICSID Administrative Council (if the challenge is to a sole arbitrator or majority of the Tribunal).  The proposal is also transmitted to the other party, and a schedule for submissions is established.  The schedule will provide an opportunity for the challenged arbitrator to furnish explanations and for the other party to make observations on the proposal.

Decision

The decision on the proposal is usually made by the other members of the Tribunal.  However, the decision will be made by the Chairman of the ICSID Administrative Council when the other members are equally divided or where the proposal refers to a sole arbitrator or to a majority of the Tribunal.

Resumption of the Proceeding

The decision will either reject or uphold the proposal for disqualification.  If the proposal is rejected, the proceeding will resume immediately with the same Tribunal.

A proposal that is upheld results in the disqualification of the challenged arbitrator and, consequently, a vacancy on the Tribunal.  A vacancy resulting from the disqualification of an arbitrator is filled using the same method by which the disqualified arbitrator had been appointed (Article 17 of the Arbitration (Additional Facility) Rules).  If no new appointment is made and accepted within 45 days of the notification of the vacancy, the appointment will be made by the Chairman of the ICSID Administrative Council at the request of a party (Article 17(2) of the Arbitration (Additional Facility) Rules). As soon as the vacancy has been filled, the proceeding will resume from the point when the proposal was submitted (Article 18 of the Arbitration (Additional Facility) Rules).

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.