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

More documents

Recommendations

Info

52(1)(a), referring to the first sentence of Article 57 of the ICSID Convention. 34 Argentina claimed that the tribunal was improperly constituted, because Dr. Sureda lacked the qualities required by Article 14(1). This mirrors Max Solutions’ arguments in the present annulment proceedings. The Committee in Azurix found this reasoning unpersuasive. The Committee reasoned that: the procedure for challenging arbitrators on grounds of a manifest lack of the qualities required [by] Article 14(1), is established by other provisions of the ICSID Convention… and if that proposal [for disqualification] is rejected in accordance with the procedure established in Article 58 of the ICSID Convention and ICSID Arbitration Rule 9 for deciding such proposals, then it cannot be said that the tribunal was “not properly constituted” by reason of non-compliance with the first sentence of Article 57. 35 (emphasis added) 24. The Committee should apply the same reasoning in this case. As the procedural history and Challenge Decision clearly show, the proposal to disqualify Professor Iracunda was properly dismissed. Pursuant to Arbitration Rule 9(2) the proposal to disqualify Professor Iracunda was transmitted to the Tribunal and pursuant to ICSID Arbitration Rule 9(3), Professor Iracunda replied to the Challenge, furnishing explanations. 36 25. In accordance with Article 58 of the ICSID Convention and ICSID Arbitration Rule 9(4), the Two Members considered the Challenge and decided, after careful deliberation, to dismiss it. In reaching their decision, the Two Members addressed both of the substantive arguments against Professor Iracunda that Claimant submitted. 37 The fact that Professor Iracunda did not disclose her publications or membership in Wilderness 38 is irrelevant given that both of these facts were known to all parties and members of the Tribunal and were properly considered in the Challenge Decision. 34 “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.” ICSID Convention, Article 57. 35 Azurix at para. 279-280. 36 CD, Annex I. 37 See generally, CD. 38 Clarifications, p. 28. 8
26. Since it is apparent that all procedures relating to the constitution and challenge of an arbitrator were complied with, the Tribunal must be considered ‘properly constituted' within the meaning of Article 52(1)(a) of the ICSID Convention. B. Regardless, the Committee should uphold the Award as the Challenge Decision was proper. 27. If this Committee decides that Article 52(1)(a) of the ICSID Convention permits a substantive, de novo, review of the challenge to Professor Iracunda, Claimant’s request for annulment on this ground should still be dismissed because the Tribunal properly dismissed the challenge to Dr. Iracunda. 28. Under Article 14(1) of the ICSID Convention, any arbitrator appointed to a tribunal must be a person of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Claimant and Respondent agree that, in this context, “independent judgment” means both “independence” in the traditional sense as well as “impartiality.” 39 Article 57 of the ICSID Convention permits a party to challenge an arbitrator on the basis “of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14.” (emphasis added) This provision decrees a notably higher standard than other arbitral rules 40 that require the challenging party to show merely “justifiable doubts” regarding an arbitrator’s impartiality and independence. 41 In ICSID proceedings, the challenging party must prove manifest lack of independence, rather than the mere appearance of a lack of impartiality. 42 29. As Professor Schreuer has noted, this standard imposes a heavy burden on challenging parties, 43 requiring proof of not only facts indicating the lack of independence, but also that the lack is “manifest” or “highly probably”, not just “possible” or “quasi-certain”. 44 39 CD, 6:279-280. 40 See e.g., UNCITRAL Rules, Articles 9-10; SCC Rules, Article 15; IBA Guidelines, General Standard 2; etc. 41 Sheppard (2009), p. 133. 42 Tupman (1989), p. 44 referring to Amco II. See also, Schreuer (2001), p. 1200. 43 Schreuer (2001), p. 1200. 9
Page 1 and 2: MEMORIAL FOR RESPONDENT TEAM AGO FI
Page 3 and 4: A. The tribunal did not manifestly
Page 5 and 6: Shore & Weiniger Reisman Internatio
Page 7 and 8: LIST OF LEGAL SOURCES Abaclat Abacl
Page 9 and 10: Malicorp MCI Millicom Mobil Malicor
Page 11 and 12: Vivendi II Wena v. Argentine Republ
Page 13 and 14: Factual Background STATEMENT OF FAC
Page 15 and 16: 7. Additionally, the Two Members no
Page 17 and 18: contrary, the Tribunal properly adm
Page 19: evident error of fact in an award i
Page 23 and 24: expressly acknowledged that her rol
Page 25 and 26: A. Under ICSID Art. 41(1), the Trib
Page 27 and 28: discretion, reject a decision that
Page 29 and 30: jurisdiction, and then applied the
Page 31 and 32: investment according to Article 25
Page 33 and 34: eached its decision in accordance w
Page 35 and 36: Rather, it is whether the Tribunal
Page 37 and 38: could not “be compared with the c
Page 39 and 40: ather because there was no contribu
Page 41 and 42: 76. In general, a party makes a sub
Page 43 and 44: 81. The Tribunal found that “the
Page 45 and 46: VI. THE TRIBUNAL PROPERLY ADMITTED
Page 47 and 48: [e]ach witness (which term includes
Page 49: REQUEST FOR RELIEF 98. For the afor

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

Create successful ePaper yourself

Delete template?

Save as template?