MEMORANDUM FOR CLAIMANT

UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT
Red List‘. Furthermore, the IBA Guidelines establish that facts alone do not automatically
constitute a source for a conflict of interest. Instead, the particular circumstances should
reasonably be considered in each individual case and a challenge should be successful only if
an objective test is met.
40. According to these guidelines, the Waivable Red List sets forth situations that are deemed to
be waivable ‗[o]nly if and when the parties, being aware of the conflict of interest situation,
nevertheless expressly state their willingness to have such a person act as arbitrator despite
the conflict of interest‘ [IBA Guidelines Part 1 (4)(c)]. Therefore, the IBA Guidelines leave the
exam of the facts to the parties, allowing them to judge whether or not they agree with the
evaluation of the arbitrator and, if they so wish, to explore the situation further and as
another option, to waive their right to object to such circumstances.
41. Nevertheless, the CAM emphasises that the IBA Guidelines are not binding and as it is
implied in their name, their purpose is to provide guidance to arbitrators, parties and national
courts in identifying, responding to and resolving conflicts by both codifying existing arbitral
practice and filling gaps in the law to arrive at the most suitable international arbitral practice
[Landolt p.410; Trakman p.9]. For that reason, any provision stated therein can only be deemed
to be a guidance in order to facilitate and help a decision of the Arbitral Council [AMS v.
TTMI]. Hence, the Arbitral Institution has the final judgment on the exam of independence
as will be demonstrated in the following section [3.]
3. The Arbitral Council has the authority to decide whether or
not the arbitrator shall be confirmed
42. According to the CAM, the Secretariat confirms directly party-appointed arbitrators if a
statement of independence is filed without remarks and in the absence of comments thereto
from the parties [CAM Rules Art. 18(4); Sali I p.351]. Contrario sensu, when these two
requirements are not met, i.e. an unqualified statement of independence and the absence of
comments by the parties; confirmation depends exclusively on the Arbitral Council [CAM
Rules Art. 18(4].
43. The Arbitral Council simply carried out one of its typical tasks as an arbitral institution by not
confirming Mr. Y as the presiding arbitrator, and thereby overcoming possible obstacles in
the constitution of the arbitral tribunal [St. John Sutton/Gill/Gearing ¶3-052; Nigi v. Inter Eltra
Kommerz].
44. Additionally, the parties‘ views are not necessarily decisive [Bond p. 563]. They are limited in
some respects by the requirements of the proper administration of justice
[Fouchard/Gaillard/Goldman ¶783]. These principles include, in particular, the parties‘ right to a
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