Investor Presentaiton
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though that resignation does not imply acceptance of the validity of
the challenge. If there is no resignation, the applicable rules differ
over who decides whether the challenge should succeed. The
UNCITRAL Rules (1976 and 2010) provide that the appointing
authority decides the challenge; Rule 9(4) of the ICSID Arbitration
Rules provides that when there is a three-person tribunal, the other
two arbitrators shall decide the challenge. In the event those
individuals cannot agree,
the Chairman of the ICSID Administrative
Council takes the decision."
86
A challenge may allege, for example, that an arbitrator has some
kind of financial link to an affiliate of one of the parties or that an
arbitrator has made public statements that allegedly demonstrate
bias. To date, challenges have not often been successful.87
88
Issue conflicts. Unique characteristics of investment arbitration
have given rise to a special category of conflicts of interest known
as "issue" conflicts. They involve arbitrators who also act as counsel
in other cases or those individuals who sit repeatedly as arbitrators
in cases that raise similar issues. For instance, one of the first
issue-conflict cases involved a claim against a sitting arbitrator who
would be deciding an issue related to expropriation; as counsel in an
unrelated case he would be taking a strong pro-investor position on
a virtually identical issue. Such a situation may be seen as casting
doubts on his ability to hear the case impartially and could at the
least give rise to the appearance of impropriety. One of the reasons
behind issue conflicts is that there is a relatively small pool of
89
86
See ICSID Convention Articles 57-58; ICSID Convention Arbitration
Rule 9.
87 For more information about arbitrator ethics and challenges, see
C. Rogers, forthcoming.
88 See Levine, 2006, pp. 61-65 (describing various cases involving issue
conflicts); Sands, 2011, pp. 19, 22-23.
89 Levine, 2006, pp. 61–65.
UNCTAD Series on International Investment Agreements IIView entire presentation