The Investment Treaty Arbitration Review

The year 2018 saw a record 10 decisions on disqualification proposals to arbitrators and ad hoc committee members alike within the International Centre for Settlement of Investment Disputes (ICSID) context.2 A further four disqualification decisions were issued in 2019. Having regard to the public availability of decisions and this flurry of activity, this chapter will focus on challenges to arbitrators (and committee members) brought under the ICSID Convention. The chapter begins by setting out the grounds for disqualification under the ICSID Convention and Rules, before briefly detailing the prevailing legal standard as developed through ICSID jurisprudence. The majority of this chapter will be devoted to a discussion of three categories of alleged conflict,3 concentrating on the reasoning of publicly available decisions published during 2018 and 2019.

The rules

The main grounds for disqualification of arbitrators under the ICSID Convention are prescribed by Article 57, which provides that:

[a] party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV.

Reference to Section 2 of Chapter IV is to the nationality requirements for appointment under Articles 38 and 39 of the ICSID Convention. A third ground for disqualification is found in Rule 8 of the ICSID Arbitration Rules, which provides for a situation where an arbitrator becomes incapacitated or unable to perform the duties of his or her office.

To read the full article, please download the Investment Treaty Arbitration Review PDF below.

Reproduced with permission from The Investment Treaty Arbitration Review.

  1. Chloe J Carswell is a partner and Lucy Winnington-Ingram is an associate at Reed Smith LLP.
  2. The ICSID website reports that there were a total of 10 decided disqualification proposals in 2018 and two in 2019. The authors have located an additional two decisions from 2019 making a total of four.
  3. These categories have been selected on the basis of their recurrent appearance in the publicly available disqualification decisions from 2018 and 2019.