Among the grounds upon which Argentina is seeking to vacate a $185+ Million
\narbitration award in favour of British Gas (see previous item) is one which criticizes the
\nInternational Chamber of Commerce for failing to disqualify one of the three arbitrators
\npresiding in the BG v. Argentina arbitration.<\/p>\n
Argentina had moved in June of 2007 to challenge the impartiality of Prof. Albert van In the BG case, the Argentine Attorney General\u2019s Office contended that it had \u201cjustifiable A particular concern for Argentina is the different disposition of a central question in the Whereas the tribunal in the LG&E v. Argentina case accepted Argentina\u2019s necessity Argentina maintains that the LG&E and Enron disputes involve similar investments (in As part of its challenge-bid, the Attorney General\u2019s Office argued that the only ITN<\/span> understands that Prof. van den Berg \u2013 who as an arbitrator cannot comment on the In the face of Prof. van den Berg\u2019s decision to remain on the tribunal, Argentina Argentina had requested that the ICC provide reasons for any decision taken on its In a subsequent ruling by the ICC Court of Arbitration Argentina\u2019s challenge to Prof. van * See \u201cArgentina and UK firm send arbitrator-challenge to venue where reasons are
\nden Berg, on the basis of what it characterizes as \u201ccontradictory\u201d rulings signed by Prof.
\nvan den Berg in his capacity as arbitrator in other ICSID<\/span> cases involving Argentina.
\nAlthough the disqualification bid was one of a growing list of challenges filed by the
\nArgentine Government in relation to the dozens of investment treaty arbitrations that it
\nfaces, the grounds for the challenge were novel.<\/p>\n
\ndoubts\u201d as to the independence and impartiality of Prof. van den Berg due to the fact that
\nhe had signed earlier arbitration awards \u2013 in the LG&E v. Argentina and Enron v.
\nArgentina cases \u2013 which Argentina says run \u201ccontrary\u201d to one another on key points of
\nlaw.<\/p>\n
\nLG&E and Enron cases: whether Argentina can claim that it acted out of a \u201cstate of
\nnecessity\u201d due to its recent financial crisis, thus absolving the country of liability for
\ntreaty breaches suffered by foreign investors.<\/p>\n
\narguments – at least for a 17 month window of time when the financial crisis was at it
\npeak – the tribunal in the Enron case rejected the necessity defence.<\/p>\n
\nArgentina\u2019s natural gas sector) and raise similar allegations of breach of the USArgentina
\nbilateral investment treaty. Yet, Argentina contends that Prof. van den Berg
\nendorsed \u201ccontradictory\u201d conclusions in those two cases, without issuing a dissenting
\nopinion or offering some explanation for this \u201cdrastic change of mind\u201d.<\/p>\n
\nexplanation for this sharp divergence can be \u201carbitrariness or caprice\u201d on the part of Prof.
\nvan den Berg, thus raising doubts as to his capacity for impartiality and independence in
\nthe ongoing BG v. Argentina arbitration.<\/p>\n
\nBG case – rejected Argentina\u2019s charge that he lacks the requisite impartiality or
\nindependence to sit in the case. Prof. van den Berg declined to withdraw from the BG
\ntribunal, and informed the parties to that proceeding that he was unable to discuss the
\ndeliberations in the Enron and LG&E cases. Further, it is understood that he informed the
\nparties that he takes the view that collegiality demands that arbitrators sitting on threemember
\ntribunals reach a common view as to how the case should be resolved. (Prof. van
\nden Berg is not known to have authored a dissenting opinion in any case where he has sat
\nas arbitrator.)<\/p>\n
\nproceeded with its challenge-bid by referring the matter to the Appointing Authority in
\nthe case: the Court of Arbitration of the International Chamber of Commerce (ICC<\/span>).
\nIn the course of so doing, Argentina also criticized the view that an arbitrator sitting on a
\nthree-person tribunal should reach a conclusion as a \u201ccollegial\u201d body. Indeed, the
\nAttorney General\u2019s Office argued that such a posture is antithetical to the requirement for
\narbitrators to exercise \u201cindependent\u201d judgment.<\/p>\n
\nchallenge-bid; as noted in past ITN reporting, Argentina has bristled at the practice of
\ncertain arbitration institutions which provide no reasons for decisions taken in relation to
\nchallenges to arbitrators.*<\/p>\n
\nden Berg was rejected. However, the ICC did not offer any reasons for this decision.
\nIn papers filed in the D.C. District Court, Argentina has decried the failure by the ICC to
\nprovide reasons for the rejection of its challenge, and characterized this failure as an
\nexcess of powers contrary to the U.S. Federal Arbitration Act. At the same time,
\nArgentina has also argued in its filings before the DC Court that the BG arbitration was
\nnot resolved in an impartial fashion.<\/p>\n
\nprovided\u201d, By Luke Eric Peterson, Investment Treaty News, October 30, 2007, available
\non-line at: http:\/\/www.IISD<\/span>.org\/pdf\/2007\/itn_oct30_2007.pdf<\/a><\/p>\n