The Independence and Impartiality of ICSID Arbitrators : Current Case Law, Alternative Approaches, and Improvement Suggestions / Maria Nicole Cleis.

Format:

Book

Author/Creator:

Cleis, Maria Nicole, author.

Series:

Nijhoff international investment law series ; Volume 8.

Nijhoff International Investment Law Series ; Volume 8

Language:

English

Subjects (All):

Arbitrators--Legal status, laws, etc.

Arbitrators.

International Centre for Settlement of Investment Disputes.

International commercial arbitration.

Investments, Foreign--Law and legislation.

Investments, Foreign.

Physical Description:

1 online resource (xii, 292 pages).

Edition:

First edition.

Place of Publication:

Leiden, Netherlands : Brill Nijhoff, [2017]

Summary:

In The Independence and Impartiality of ICSID Arbitrators, Maria Nicole Cleis examines the standard of independence required under the ICSID Convention, as evidenced in existing disqualification decisions, and makes novel suggestions for reforms to ensure unbiased decision-making.

Contents:

Intro

The Independence and Impartiality of ICSID Arbitrators: Current Case Law, Alternative Approaches, and Improvement Suggestions

Copyright

Contents

Acknowledgments

List of Illustrations

List of Abbreviations

Introduction

Structure of the Book

1 Independence and Impartiality in the ICSID Convention and Arbitration Rules

1 Legal Framework and Drafting History

1.1 The Requirement of Independence and Impartiality

1.2 The Disqualification of Arbitrators

1.3 Arbitrators' Disclosure Obligation

2 Delimiting Independence and Impartiality in a System of Party-appointments

2.1 The Notions of Independence and Impartiality

2.2 Party-appointments and Independence and Impartiality

2 Disqualification Decisions under the ICSID Convention and Arbitration Rules

1 Formally Inconsistent Interpretations of the Disqualification Threshold

1.1 Requirement of Strict Proof under Amco Asia

1.2 Requirement of Reasonable Doubts under Vivendi and SGS

1.3 Inconsistency of the Disqualification Threshold in Subsequent Decisions

A Challenge Decisions Applying the Amco Asia Standard

B Challenge Decisions Applying the Vivendi Standard

C Challenge Decisions Referring to Both Standards

1.4 Conclusion

2 Application of the Standard to Specific Categories of Alleged Conflict

2.1 Behavior in Current Proceeding

2.2 Familiarity with Another Participant in the Proceeding

A Previous Contacts with a Party or Counsel

B Role Switching between an Arbitrator and Counsel

C Repeat Appointments

2.3 Familiarity with the Subject-matter of the Proceeding

2.4 Connection to an Adverse Third Party

2.5 Conclusion

3 Factors Underlying the Prevalent Dismissal of Arbitrator Challenges

3 Alternative Standards of Independence and Impartiality

1 International Adjudication

1.1 Relevance.

1.2 The International Court of Justice

A Independence and Impartiality Requirements

B Removal of ICJ Judges

C Case Law

1.3 Dispute Settlement in the World Trade Organization

B Challenge of Panelists and Members of the Appellate Body

1.4 Contextualization and Conclusion

2 International Commercial Arbitration

2.1 Relevance

2.2 The UNCITRAL Arbitration Rules

A Behavior in Current Proceeding

B Familiarity with Another Participant in the Proceeding

C Familiarity with the Subject-Matter of the Proceeding

D Connection to an Adverse Third Party

2.3 The SCC Arbitration Rules

A Familiarity with Another Participant in the Proceeding

B Familiarity with the Subject-Matter of the Proceeding

2.4 The ICC Arbitration Rules

C Connection to an Adverse Third Party

2.5 Contextualization and Conclusion

3 Self-regulatory Codes of Conduct for Arbitrators

3.1 Relevance

3.2 The IBA Guidelines

A General Standards

B Application Lists

3.3 Contextualization and Conclusion

4 Sui Generis Dispute Resolution Mechanisms

4.1 Relevance

4.2 The Iran-United States Claims Tribunal

4.3 The Permanent Court of Arbitration

4.4 Contextualization and Conclusion

5 Summary Analysis

5.1 Basic Consensus

5.2 Prevalent Threshold

5.3 Effect of the Threshold on the Outcome

A Main Discrepancies

B Main Similarities

C Gaps in the Case Law

4 Analysis of Existing Reform Proposals

1 Abolishment or Modification of the System of Party-appointments

1.1 Appointment by a Neutral Body

1.2 Party-appointment from a Roster

2 Prohibition of Dual Functions

2.1 Complete Prohibition.

2.2 Temporary Prohibition and Vesting Period

2.3 Disinvolvement upon Challenge?

3 Clarification of the Threshold for Arbitrator Challenges

3.1 Excessive Rigor of the Strict Proof Threshold

3.2 Adequacy of the Justifiable Doubts Threshold

4 The Investment Court System Proposed by the European Union

4.1 Investor-state Dispute Settlement under CETA

4.2 Investor-state Dispute Settlement under TTIP

4.3 ICS - Panacea or Chimera?

5 Improvement Suggestions

1 Institutional Reforms

1.1 Appointment of the Chairperson from a Roster

1.2 Institutional Confirmation of Party-appointed Arbitrators

1.3 Institutional Jurisdiction for Arbitrator Challenges

2 Guidance on the Interpretation of a Justifiable Doubts Threshold

2.1 Compulsory Grounds for Disqualification

2.2 Potential Grounds for Disqualification

A Reversal of the Burden of Proof

B Burden of Proof on the Challenging Party

2.3 No Grounds for Disqualification

2.4 Proposal for ICSID-specific Guidelines on Conflict of Interest

A Incompatibilities

B Potential Grounds for Disqualification

C Unproblematic Circumstances

3 Implementation of Suggested Reforms

Summary

Bibliography

Legal Sources

ICSID Cases

UNCITRAL Cases

Index

Index of Case Law.

Notes:

Includes bibliographical references and index.

Description based on print version record.

Description based on publisher supplied metadata and other sources.

OCLC:

981908104