{"id":202,"date":"2010-05-11T09:30:00","date_gmt":"2010-05-11T14:30:00","guid":{"rendered":"http:\/\/itn.mattrock.ca\/2010\/05\/11\/icsid-panel-denies-ukraines-challenge-to-arbitrator\/"},"modified":"2013-01-16T10:49:06","modified_gmt":"2013-01-16T16:49:06","slug":"icsid-panel-denies-ukraine-s-challenge-to-arbitrator","status":"publish","type":"post","link":"https:\/\/www.iisd.org\/itn\/2010\/05\/11\/icsid-panel-denies-ukraine-s-challenge-to-arbitrator\/","title":{"rendered":"ICSID Panel Denies Ukraine’s Challenge to Arbitrator"},"content":{"rendered":"

By Elizabeth Whitsitt<\/strong><\/span><\/p>\n

May 11, 2010<\/strong><\/span><\/p>\n

On March 19, 2010 two members of an ICSID<\/span> arbitral tribunal \u2013 the Honourable Davis R. Robinson (President) and Dr. Stanimir A. Alexandrov \u2013 dismissed the Ukraine\u2019s challenge to the tribunal\u2019s third member, Dr. Yoram Turbowicz.<\/span><\/p>\n

Arbitral proceedings between Alpha Projektholding GMBH (Alpha) and the Ukraine began in 2007 after the Austrian company alleged violations of the Austria-Ukraine BIT<\/span> in relation to its investment in a hotel-development project in Kiev in the mid-1990s.<\/span><\/p>\n

Subsequent to the tribunal already having heard the merits of the case in the spring of 2009, the Ukraine filed a formal proposal for the disqualification of Dr. Turbowicz on January 25, 2010 by raising, among other things, concerns about the relationship between Dr. Turbowicz and the claimant\u2019s counsel.\u00a0 Specifically, the Ukraine\u2019s concerns arose after learning that both Dr. Turbowicz and the claimant\u2019s counsel, Dr. Leopold Specht, studied at Harvard University during the late 1980s and early 1990s and the fact that Dr. Turbowicz did not disclose this shared educational experience.<\/span><\/p>\n

For his part, Dr. Turbowicz maintained that he was not required to disclose his shared educational experience with the claimant\u2019s counsel because that fact was not evidence of the type of relationship coming within the language of ICSID Arbitration Rule 6(2).<\/span><\/p>\n

Under ICSID Arbitration Rule 6(2), upon accepting their appointments, arbitrators are required disclose \u201c\u2026 (a) [their] past and present professional, business and other relationships (if any) with the parties and (b) any other circumstance that might cause [their] reliability for independent judgment to be questioned by a party.\u201d<\/span><\/p>\n

Ultimately rejecting all of the Ukraine\u2019s grounds for challenge, the bulk of the tribunal\u2019s decision is concerned with the scope of disclosure required under the ICSID Convention<\/span> and its Arbitration Rules.<\/span><\/p>\n

Applying those Rules, as informed by the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines), to the facts of the case the two-person tribunal sided with their co-arbitrator and held that \u201c\u2026the IBA Guidelines, while not determinative in any sense, affirmatively discourage the disclosure of the shared educational experience of Dr. Turbowicz and Dr. Specht.\u201d<\/span><\/p>\n

Based on their analysis of those guidelines and affirming the holding in a prior ICSID case,* the tribunal concluded that an arbitrator is only required to disclose a fact under Arbitration Rule 6(2) if the arbitrator \u201creasonably believes that such fact would reasonably cause his or her reliability for independent judgment to be question by a reasonable person.\u201d<\/span><\/p>\n

Sources:<\/span><\/p>\n

* See Suez, Sociedad General de Aguas de Barcelona S.A. and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB\/03\/17, Second Decision on Disqualification, May 12, 2008, available here:<\/span><\/p>\n

http:\/\/ita.law.uvic.ca\/documents\/Suez-VivendiChallenge2.pdf<\/span><\/a><\/p>\n

Previous ITN<\/span> Reporting:<\/span><\/p>\n

\u201cFailed hotel deal in Ukraine leads to ICSID arbitration,\u201d By Damon Vis-Dunbar, Investment Treaty News, 30 August 2007, available here:<\/span><\/p>\n

http:\/\/www.IISD<\/span>.org\/pdf\/2007\/itn_aug30_2007.pdf<\/span><\/a><\/p>\n