memorial for respondent team ago fifth annual foreign ... - FDI Moot

II. THE AWARD SHOULD BE UPHELD BECAUSE THE TRIBUNAL WAS PROPERLY
CONSTITUTED.
17. Dr. Honesta and Mr. Viator (the “Two Members”) properly dismissed the
challenge to Professor Iracunda pursuant to Articles 57 and 58 of the ICSID Convention
and Arbitration Rule 9(4). Even if the Challenge was not properly dismissed, the
Committee should uphold the Award because there was no material violation of the
ground set forth in Article 52(1)(a).
A. Dr. Honesta and Mr. Viator properly dismissed the challenge to Professor
Iracunda.
18. Under Article 52(1)(a) of the ICSID Convention, a party may request annulment
of an arbitral award on the ground that “the Tribunal was not properly constituted.” 28 The
meaning of “properly constituted” is not clearly defined in the text of the ICSID
Convention, but may be determined by reference to its object and purpose as well as the
context in which it appears. As a threshold matter, “constituted” would seem to refer to the
procedures involved in the initial constitution of the tribunal.
19. In turn, Articles 57 and 58 of the ICSID Convention provide each party with an
opportunity to challenge an arbitrator during the arbitral proceedings on substantive
grounds for non-compliance with the requirements of Article 14(1) of the ICSID
Convention. Given that Articles 57 and 58 already provide the parties with an opportunity
to challenge a tribunal member, Article 52(1)(a) cannot be interpreted as providing a
second bite at the apple.
20. Consequently, Article 52(1)(a) of the ICSID Convention cannot properly be
interpreted as providing a party the opportunity to challenge a member of the tribunal de
novo after the Tribunal has already dismissed a challenge to the arbitrator and issued an
award, as this would amount to a substantive challenge inconsistent with the purpose of
annulment proceedings. 29 As the tribunal in Consortium R.F.C.C. noted, “[e]ven the most
28 ICSID Convention, Article 52(1)(a).
29 Azurix, para. 280.
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