State Appointee and Independence

Venezuela is again pushing the boundaries of arbitral independence (see Repeat Appointments and Conflicts of Interest below).

In Saint Gobain v Bolivarian Repulic of Venezuela (2013) an ICSID party-nominated arbitrator has survived an attempt to disqualify him on the ground that he manifestly lacked independence and impartiality, qualities required by Article 14(1) of the ICSID Convention.  At the time of appointment, the arbitrator was a lawyer in the Argentinian Attorney General’s Office, a position he subsequently left.  The claimant proposed his disqualification, arguing that he would have been disqualified from sitting as a judge under the International Court of Justice (ICJ) Statute, because his position was political.  Even it were not political, there was an issue conflict, in he had previously argued from Argentina’s perspective issues that may arise in this case.

Rejecting the challenge, the remaining members of the tribunal noted that the ICJ Statute was of no direct application.

The arbitrator’s position was not, of itself, incompatible with his role as an arbitrator.  The tribunal noted the arbitrator was not subject to any current control by Argentina or Venezuela and it rejected the claimant’s concern that there was an issue conflict.  There was no evidence that cast reasonable doubt on his impartiality and independence, let alone that made it highly probable that he lacked these qualities.  The fact that a lawyer has argued a particular position in the past does not necessarily mean that he will take the same position in the future.  The tribunal accepted that the situation could be different if an arbitrator is simultaneously acting as counsel for a party in another arbitration, but there was no indication here that that was the case.


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