Abaclat and ors v Argentina, Decision on the proposal to disqualify a majority of the tribunal, ICSID Case No ARB/07/05, IIC 807 (2011), 21st December 2011, World Bank; International Centre for Settlement of Investment Disputes [ICSID]
- Abaclat and ors
- Robert B Zoellick (President)
- Counsel for Party One:
- White & Case LLP; Grimaldi e Associato; Perez Alati, Grondona, Benitez, Arntsen & Martinez De Hoz (Jr)
- Counsel for Party Two:
- Procuradora del Tesoro de la Nación; Cleary, Gottlieb, Steen & Hamilton
- Procedural Stage:
- Decision on the proposal to disqualify a majority of the tribunal
- Governing Law:
- Agreement between the Republic of Argentina and the Italian Republic for the Promotion and Protection of Investment, signed 22 May 1990, entered into force 14 October 1993 (‘Argentina-Italy BIT’)
- International law
- Challenge to appointment of arbitrator
Oxford Reports on International Investment Claims is edited by:
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Decision - full text
Paragraph numbers have been added to this decision by OUP
December 21, 2011
- Abaclat and others
- c/o Ms. Carolyn B. Lamm,
- Mr. Jonathan C. Hamilton,
- Ms. Abby Cohen Smutny,
- Ms. Andrea J. Menaker, and
- Mr. Francis A. Vasquez, Jr.
- WHITE & CASE LLP
- Washington, D.C. 20005
- c/o Avv. Vittorio Grimaldi and
- Avv. Paolo Marzano
- GRIMALDI E ASSOCIATI
- Rome, Italy
- c/o Dr. José Alfredo Martinez de Hoz, Jr.,
- Dra. Valeria Macchia and Dra. Jimena
- Vega Olmos
- PÉREZ ALATI, GRONDONA, BENITES,
- ARNTSEN & MARTINEZ DE HOZ (Jr.)
- Buenos Aires, Argentina
- Argentine Republic
- c/o Dra. Angélina María Esther Abbona
- Procuradora del Tesoro de la Nación Argentina
- Procuración del Tesoro de la Nación Argentina
- Buenos Aires, Argentina
- Mr. Jonathan I. Blackman,
- Mr. Matthew D. Slater,
- Mr. Carmine D. Boccuzzi,
- Ms. Inna Rozenberg, and
- Mr. Ezequiel Sánchez Herrera
- Cleary, Gottlieb, Steen & Hamilton LLP
- One Liberty Plaza
- New York, NY 10006
Re: Abaclat and others v. Argentine Republic (ICSID Case No. ARB/07/5)
2 On September 15, 2011, the Argentine Republic, Respondent in the above case, submitted a Request for the Disqualification of President Pierre Tercier and arbitrator Albert Jan van den Berg (the Request).
3 The Request was submitted pursuant to Articles 14 and 57 of the ICSID Convention and Rule 9 of the ICSID Arbitration Rules. Pursuant to Article 57, a party may propose the disqualification of an arbitrator on account of any fact indicating a manifest lack of the qualities required by Article 14(1).
4 Pursuant to Article 58 of the ICSID Convention and ICSID Arbitration Rule 9, it falls upon the Chairman of the ICSID Administrative Council to decide the Request.
5 By letter of October 28, 2011, the parties were informed of my decision to seek a recommendation on the Request from the Secretary-General of the Permanent Court of Arbitration at The Hague. By same letter, the parties were reminded that this request was exceptional, that it should not be construed as a basis for any future similar request, and that the final decision on the Request would remain with the Chairman of the ICSID Administrative Council.
6 The parties have been given a full opportunity to present their positions on this matter and the Centre provided the Permanent Court of Arbitration with copies of all communications submitted by the parties following the filing of the Request and of the explanations furnished by the arbitrators whose disqualification is proposed.
7 The recommendation from the Secretary-General of the Permanent Court of Arbitration was received by ICSID on December 19, 2011. A copy of the recommendation is attached.
8 I have carefully considered the Request, in light of the parties’ written arguments, the arbitrators’ explanations, and the recommendation from the Secretary-General of the Permanent Court of Arbitration. Based on the materials submitted, I have reached the conclusion that the Argentine Republic’s Request for the Disqualification of President Pierre Tercier and arbitrator Albert Jan van den Berg of September 15, 2011 does not meet the standard set forth in Article 57 of the ICSID Convention for the disqualification of an arbitrator.
9 Accordingly the Argentine Republic’s Request for the Disqualification of President Pierre Tercier and arbitrator Albert Jan van den Berg is hereby rejected.
Robert B. Zoellick
Chairman of the Administrative Council
cc (by email, with attachment):
Professor Pierre Tercier
Professor Albert Jan van den Berg