Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
related persons or entities whether social, economic or otherwise
that suggests some dependence. The requirement of impartiality
relates to the ability of the arbitrator to come to the case without
favouring one of the parties and without preconceptions in relation
to the subject-matter of the dispute.
A lack of independence can suggest a lack of impartiality, and
even an appearance of bias can be sufficient to disqualify an
arbitrator. Appearance of bias is impermissible because of the
important principle that justice "must not only be done, but must be
seen to be done.”84 This does not mean that de minimis contacts
between an arbitrator and a party demonstrate an appearance of bias;
the usual concern is whether the contacts are such that a reasonable
observer would have justifiable doubts about the arbitrator's
impartiality. Arbitrators ordinarily have an on-going duty to disclose
any information or activities that could give rise to justifiable doubts
about their independence or impartiality."
4. Challenges to arbitrators
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Most investment agreements do not include specific challenge
procedures. Those matters are governed by the applicable arbitral
rules. For example, the UNCITRAL Rules (1976 and 2010) provide
that arbitrators can be challenged "if circumstances exist that give
rise to justifiable doubts as to the arbitrator's impartiality or
independence".
Challenges must be made within a certain number of days of the
arbitrator's appointment or, in the case of later-acquired knowledge,
within a specified period often 15 or 30 days from the date that
the challenging party learns of the facts supporting the challenge. In
some cases an arbitrator will resign when faced with a challenge,
83 Park, 2009, pp. 636–38; 670–72.
84 Ibid., p. 684.
85
See generally Malintoppi, 2008, p. 789.
UNCTAD Series on International Investment Agreements IIView entire presentation