Criticism of substance of rulings cannot justify arbitrator disqualification (ICSID)

The respondent's proposal for disqualification of the majority of the tribunal (under Article 57 of the ICSID Convention) was rejected. The proposal followed the majority's dismissal of the respondent's request for provisional measures, and its subsequent decision on jurisdiction admitting "mass claims" (see Legal update, Tribunal has jurisdiction over collective claim (ICSID)). The respondent alleged that the majority were not persons "who may be relied upon to exercise independent judgment" as required by Article 14(1) of the ICSID Convention and that there was a "manifest lack of the qualities required by" Article 14(1) justifying disqualification under Article 57. The respondent relied on:

The Secretary-General of the PCA noted that the burden of proof lay on the respondent to establish facts from which a manifest lack of the relevant qualities could be inferred; and, further, that such an inference could reasonably be made. Generally, criticisms levelled at the substance of the tribunal's rulings would not justify such an inference. In the present case, the respondent's grounds did not go beyond alleged defects in the majority's substantive and procedural decisions. This was not enough to give rise to a valid basis for disqualification.

Although the Secretary-General contemplated that, in theory, there might be rulings which demonstrated lack of independence (for example, where they were clearly made in bad faith), his Recommendation suggests that, in most cases, dissatisfaction with a ruling will not, of itself, indicate a manifest lack of independence or impartiality; and that further objective evidence will be required to justify disqualification.

Case: Abaclat and others (Case formerly known as Beccara and others) v Argentine Republic (ICSID Case No. ARB/07/5).