Duarte Henriques Enter your email address to follow this blog and receive notifications of new posts by email. 3. Investment Arbitration Reporter To examine the alleged lack of independence, the committee applied the three-step tests following the approach in EDF v. Argentina annulment decision: Eiser argued that Spain had waived its right to object to the connections between Alexandrov and Brattle because Spain should have known about it since they were public domain before the arbitral award was rendered. Transnational Dispute Management [1] The primary ground on which the award was annulled was the undisclosed relationship between Stanimir Alexandrov, who was one of the arbitrators on the arbitral tribunal that rendered the award, and one of the experts appointed by the Claimants to make their case. Nikos Lavranos For that, the committee adopted the Blue Bank v. Venezuela standard that determines that the relevant legal standard is an objective one “based on a reasonable evaluation of the evidence by a third party” (para. 52(1)(a) of the ICSID Convention an award can only be annulled for failure to comply with the steps necessary to constitute the tribunal at the outset of the proceedings (para. ARB/13/36, Award, 4 May 2017. And it is in this context that the Eiser case has taken a firm stand. First Line of Reasoning – All State Measures Frustrated Legitimate Expectations. Read more here.) Practical Law Arbitration v. Kingdom of Spain, ICSID Case No. Pratyush Nath Upreti Emanuela Matei 4. Richard Happ This dispute relates to measures implemented by Respondent modifying the regulatory and In a recent decision, in Eiser Infrastructure Limited and Energia Solar Luxemburg S.À.R.L. Spain had made their case for annulment of the award on two broad grounds. Amount of damages: US $124,919,200. The committee deliberated on the first ground, and analysed the relationship between Mr. Alexandrov and the expert retained by the Claimants in great detail. Sophie Nappert The committee also noted that given the fact that it is in the very nature of deliberations that arbitrators exchange opinions before issuing the award “it would be unsafe to hold that Alexandrov’s views and his analysis could not have had any material bearing on the opinions of his fellow arbitrators” ( paras. This development has come in light of the increasing concern of politicisation of Investor-State arbitrations, and how the appointment of arbitrators to constitute the tribunal accentuate this concern more than any other factor. ISSN 2519-8823 (French ed.) Clifford Hendel Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. Rather, these awards can be divided into three different lines of reasoning, which are examined in the paragraphs that follow. The tribunal awarded EUR 128 million in damages to Eiser Infrastructure Limited and Energia Solar Luxembourg S.à r.l., (collectively, “Eiser”).[1]. And. Third, the Eiser Parties argue that Spain disagrees with the Tribunal's factual findings, something that is not relevant to any annulment standard in annulment proceedings. After Teresa Chang stepped down from the committee, she was swiftly replaced on the committee by Makhdoom Ali Khan. Having considered the first ground sufficient to annul the award rendered by the tribunal, the committee did not delve into the intricacies of the second ground raised by Spain. It illustrates the median approach, which seeks to remedy the concerns of double hatting within the prevailing framework in investment arbitration, while also maintaining the balance between the interests of both the investor and the Responding State party in the arbitral process, especially during appointments. In the late 1990s, Spain implemented extensive legislation which established a special regime for renewable energy production. The Draft Code came into being due to growing concerns about the numerous ethical and practical predicaments in investment arbitration proceedings, due to the different professional relations and roles of the appointed arbitrators. On June 11, 2020, an ICSID ad hoc committee annulled an award in its entirety on the grounds of serious departure from fundamental rules of procedure. The committee did not find, as argued by Eiser, that it had the discretion to decide not to annul the award even if the requirements under Art. Spain) or that changes would not be “total and unreasonable” (Eiser v. Spain; similarly Foresight v. Spain; Novenergia II v. Spain; NextEra v. Spain). EU Observer, https://globalarbitrationreview.com/article/1227900/undisclosed-expert-ties-prove-fatal-to-icsid-award>, https://www.law.com/newyorklawjournal/almID/1202462634101/The-Double-Hat-Debate-in-International-Arbitration/?slreturn=20200731133829>, https://hsfnotes.com/arbitration/2018/05/30/the-new-draft-dutch-bit-what-does-it-mean-for-investor-mailbox-companies/>, http://arbitrationblog.kluwerarbitration.com/2020/03/25/uncitral-working-group-iii-would-an-investment-court-de-politicize-isds/?doing_wp_cron=1598784017.8404219150543212890625>, Unveiling Japan’s Modern BIT Policy: A Review of its Substantive Provisions, RUSSIAN INVESTORS IN AFRICA:HE WHO DOES NOT RISK WILL NEVER DRINK CHAMPAGNE, The Contents of the European Investment Law and Arbitration Review, Vol. Horia Ciurtin, Editors According to the committee, “[s]uch a waiver cannot be established without proof that the party concerned had actual or constructive knowledge of all the facts” (para. Editor-in-Chief In its recent decision in the case of Eiser Infrastructure Limited and Energia Solar Luxemburg S.à r.l. As a consequence, it claimed that the value of its investment was reduced significantly. [7] M.B. Notes: The ad hoc committee was composed of Prof. Ricardo Ramírez Hernández (president), Makhdoom Ali Khan (member) and Judge Dominique Hascher (member). After the arbitral tribunal chaired by John Cook, and comprising of Stanimir Alexandrov and Campbell McLachlan, had decided the dispute between UK-based infrastructure firm Eiser Infrastructure Ltd. and the Republic of Spain in favour of the former, and ordered Spain to pay €128 million, Spain filed an application to annul the award, and to deliberate upon the same, a three-member committee comprising of Chairman Ricardo Ramírez-Hernández, Dominique Hascher and Teresa Cheng was constituted. [16] ‘The new draft Dutch BIT: what does it mean for investor mailbox companies?’ (HSF Notes, 30 May 2018) < https://hsfnotes.com/arbitration/2018/05/30/the-new-draft-dutch-bit-what-does-it-mean-for-investor-mailbox-companies/> accessed 4 July 2020. This article was first published on Kluwer Arbitration Blog on 12 July 2020, see here.. The duty to disclose is a corollary of the independence and impartiality requirement, as it places a positive duty upon the appointed arbitrators to disclose any and all potential and existing conflicts of interest with any of the parties, witnesses, counsel etc. [20] UNCITRAL and ICSID, Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, Article 6 – “Adjudicators shall [refrain from acting]/[disclose that they act] as counsel, expert witness, judge, agent or in any other relevant role at the same time as they are [within X years of] acting on matters that involve the same parties, [the same facts] [and/ or] [the same treaty]”. Eiser v. Spain: Reinforcing the Importance of Early Disclosure in Investment Arbitration. [4] Cf. [4]. Practical Implications of the New Legal Framework for Foreign Direct Investment in the European Union. Prof. Loukas Mistelis Global Arbitration Review 256). While the case certainly emphasised the importance of making prompt and early disclosure of conflicts of interest in Investment Arbitration, it also highlighted an issue that has garnered significant academic interest and debate for a long while: the issue of double-hatting. Hence, the lack of disclosure constituted a serious breach that warranted annulment both under clauses (a) and (d) of paragraph (1) of Art. The public interest element, and the fact that proceedings in investment arbitration are indeed public, call for a greater scrutiny of the independence and impartiality of the arbitrators appointed. v. Kingdom of Spain, ICSID Case No. Pawel Sikora The 28 arbitral awards from Charanne v. Spain to The PV Investors v. Spain did not give a uniform answer to this question. The Dutch Model BIT has employed a rather extreme approach, explicitly disallowing double hatting, and precluding arbitrators from acting as legal counsels. The third option, in Art 26(2)(c) with … Double hatting has gained significant traction in the academic discourse on investment arbitration ever since Prof. Phillipe Sands first alluded to the dilemma at the 2009 IBA Conference. It further concluded that Alexandrov should have disclosed his relationship with Brattle and particularly with Lapuerta based on an objective assessment of the multiple professional connections and interactions between them. [10] It essentially refers to the growing trend in investment arbitration, wherein lawyers who are appointed as arbitrators in particular cases continue to represent other parties as counsel in arbitration proceedings at the same time. Furthermore, in four of these proceedings, the impugned expert, Mr. Lapuerta, had been the testifying expert on behalf of the Brattle group. State liability to foreign investors in the renewable energy sector: Eiser v Spain and its implications. [1] Eiser Infrastructre Ltd. v Republic of Spain (ICSID Case No. 2013. Eiser and Energía Solar v. Spain Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. SolEs Badajoz v. Spain SolEs Badajoz GmbH v. Kingdom of Spain (ICSID Case No. Charanne and Construction Investments v. Spain, SCC Case No. It argued that, for the case at hand, “manifest appearance of bias” arose from a long-standing relationship between Alexandrov and the Brattle Group (“Brattle”), in particular Brattle’s employee, Carlos Lapuerta,[2] and from Alexandrov’s failure to disclose his relationship with Brattle and this particular employee (Brattle is a company that provides expert testimonies and quantum of damages in international arbitration proceedings). In fact, in the preliminary identifications of possible areas of reform in investor-state arbitration by the UNCITRAL Working Group III, [17] the concern that arises from completely shifting the burden of appointments from parties to an appointing authority is a re-politicisation of the investment arbitration paradigm. The Underlying Arbitration involved Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. ARB/13/36, available at https://www.italaw.com/sites/default/files/case-documents/italaw9050.pdf, [2] Principal of The Brattle Group. [18] Fernando Dias Simoes, ‘UNCITRAL Working Group III: Would an Investment Court De-politicize ISDS’ (Kluwer Arbitration Blog, 25 March 2020) < http://arbitrationblog.kluwerarbitration.com/2020/03/25/uncitral-working-group-iii-would-an-investment-court-de-politicize-isds/?doing_wp_cron=1598784017.8404219150543212890625> accessed 4 July 2020. October 5, 2017 State liability to foreign energy investors was the subject of an article co-authored by Diora Ziyaeva and published by the International Bar Association's Power Law Committee in September 2017. Date d'introduction : 23 déc. [2] ICSID Rules, Article 52, “(1) Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.”. ARB/03/19). [14] In Telekom Malaysia Berhad v Ghana (UNCITRAL Arbitration at the PCA, The Hague), Ghana challenged the presence of the arbitrator nominated by the Claimants, Prof. Emmanuel Galliard, on the ground that he was acting as counsel for Morocco in the annulment proceedings of the award rendered in RFCC v Morocco (ICSID Case No. The Parties representatives and their addresses are listed above on page (i). Double hatting raises a number of poignant ethical and practical concerns, as a result of the unavoidable conflict of interests that arise in light of the interwoven nexus of relations which lawyers have, both in his/her role as a counsel, and as an arbitrator. Chris Wilford. v. Kingdom of Spain (ICSID Case No. Eiser v Spain: ICSID Award annulled on two grounds due to undisclosed ties between claimants’ appointed arbitrator and claimants’ quantum experts. ARB/98/2 Annulment Proceeding https://www.italaw.com/sites/default/files/case-documents/italaw11100.pdf, Keep updated with the ITN newsletter or subscribe to our RSS feed, Investment Treaty News is an online journal published by the International Institute for Sustainable Development, ISSN 2519-8467 (English ed.) Civil Action No. 52(1)(e), and had manifestly exceeded their powers, under Art. Turning to the second step, the committee had to determine whether the standard for disqualification had been met. This legislation led companies to finance various renewable energy plants in Spain.
Houses Going To Auction In Gwent, Gmod Gredwitch Helicopter, Knitr Not Showing Plots, Long Term Condition Reflective Essay, Washtenaw County Trial Court Juvenile Division, Founders Blushing Padre, Hampton Bay 3-person Patio Swing Replacement Cushions,