File Name: challenges and recusals of judges and arbitrators in international courts and tribunals .zip
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- Challenges and recusals of judges and arbitrators in international courts and tribunals
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No Civil law appeal was filed against the award but in August — when the time limit to appeal to the Federal Tribunal had run out — one of the parties became aware of the fact that an affiliate company of the company prevailing in the arbitration had received advice from the German member of the CMS network in an unrelated matter. A petition for revision was therefore submitted to the Federal Tribunal, seeking the recusal of the Arbitrator and the annulment of his award because the advice given by the German firm to a sister company of one of the parties to the arbitration had not been disclosed at the time.
As our readers know, the undersigned on the left was a member of the CMS network until the end of and participated in the drafting of the briefs of the case. Whilst attempting to comment on the decision with full objectivity, he cannot claim to have been totally disinterested in the outcome at the time!
The Federal Tribunal devotes quite some effort in the opinion to decide whether or not the matter was actually capable of revision. See Section 2 of the opinion in this respect. Turning to the issue of the independence of an arbitrator who is a partner of a law firm which is a member of the CMS network, if and when another firm in another country but belonging to the same network — in this case, the German member of CMS — gives some unrelated legal advice to an affiliate of one of the parties in the arbitration, the Court analyzed the relationship between the members of the network to reach the conclusion that they are financially and legally independent.
In the middle of the s, the Italian law company X. During the final test, carried out on December 20, , some cables of the lift broke, causing the platform to fall. A dispute arose between the Italian company and the Dutch company as to the financial consequences of the accident with each claiming that the other was responsible. In December , Y. After investigating the matter, the Arbitrator issued his final award on April 23, On August 4, , X.
It adds that it had no reason at the time or during the arbitration proceedings to question the impartiality or the independence of the Arbitrator. However, so it says, on July 8, , one of the three lawyers assisting it during the arbitral proceedings discovered a press release dated December 5, , by which the Dutch tax and law firm A. According to the Petitioner, the connection between the law firm of A.
In its view therefore, revision should be ordered. In its answer of October 14, , Y. The alleged lack of impartiality of independence or an arbitrator could anyway not be grounds for revision of an arbitral award in its view but merely grounds for appeal within the meaning of Art.
The Arbitrator too submits that the matter is incapable of revision or that the petition should be rejected in its answer of October 23, In his view, besides being filed late, the aforesaid petition cannot succeed. Indeed, A. Therefore, the circumstance alleged by the Petitioner, which he assured the Court he was entirely unaware of, was not such — in his view — as to justify a challenge and cannot therefore justify upholding the request for revision.
On November 16, , the Petitioner filed a reply in which it confirmed its submissions as to the request for revision.
On December 3, , both the Respondent and the Arbitrator submitted a rejoinder in which they repeated their initial submissions. According to Art. When the decision is in another language here, English the Federal Tribunal uses the official language chosen by the parties.
Before the Arbitral Tribunal, they used English. Any law of procedure states a time from which judicial decisions are final, whether they are issued by state tribunals or private tribunals. Essentially, there always comes a time when material truth, insofar as it may be established, must give way to judicial truth, imperfect as it may be, under penalty of jeopardizing certainty as to the law.
Yet, there are some extreme situations in which the notions of justice and fairness absolutely require that an enforceable decision may not survive because it is based on flawed premises. Relying upon principles similar to the one recalled above, the Federal Tribunal supplemented this lacuna through case law ATF II at 2. The grounds for revision of these awards were the ones stated at Art.
They are now contained in Art. The Federal Tribunal is the judicial body having jurisdiction to address the request for revision of any international arbitral award, whether final, partial, or interlocutory.
When it upholds a request for revision, it does not decide the case on the merits but sends the matter back to the arbitral tribunal that decided in the first place or to a new arbitral tribunal to be constituted ATF III 6 at 2 and references.
The request for revision submitted to this Court does not completely fall within this framework. Indeed, its author claims the discovery of a circumstance which, in its view, would have seriously questioned the independence of the Arbitrator who issued the award, which is the subject of the request. Therefore, it considers it is entitled to invoke, with regard to the aforesaid circumstance, both the specific ground for revision contained in the law Art.
Consequently, the admissibility of the request for revision, which the Respondent challenges, is questionable. Admittedly, it is not the compliance with the time limit within which such a request must be submitted which is involved here, because the Petitioner acted within both the 30 day time limit after the discovery of the ground for challenge on July 8, , Art. However, the very admissibility of the ground for revision it invokes raises an issue here.
In two decisions issued in , the Federal Tribunal found that a ground comparable to the one at issue here came within both of those anticipated by Art.
However, this Court left the issue open. Case law under the aegis of the OJ held that the a posteriori discovery of a violation of the rules concerning the composition of the arbitral tribunal Art. However, since the right to invoke this ground for revision depended at the time on compliance with a day time limit from receiving the written communication of the judgment Art. The situation is no longer the same de lege lata because Art.
Under the present law, it is therefore no longer possible to draw an argument from the fact that the party that is considered to be harmed by a judgment of the Federal Tribunal or an international arbitral award disregarding the provisions as to challenges should file a request for revision or file a public law appeal respectively, against such decisions within a time limit identical for the two legal recourses.
Legal commentators are divided as to how this question should be answered; and the further hypothesis of a crime committed by the arbitrator — which is not at issue herein — remains reserved. Some scholars deny to a party in an arbitral proceeding the right to argue by means of revision a ground for challenge which it discovered only after the time limit to appeal the award expired. According to Bernhard Berger and Franz Kellerhals in particular, since the federal legislature deliberately waived the introduction of a provision as singular as Art.
Shortly before PILA came into force on June 1, , and before the Federal Tribunal issued the judgment published at ATF II , three authors already suggested that revision of international arbitral awards should be permitted by applying Art.
One of them and another writer eventually criticized the aforesaid judgment 4P. In their view, applying Art. The majority of legal writers follow this, albeit with various motivations, in particular as to whether or not the ground for revision arising from the subsequent discovery of ground for challenge should be related per analogiam to Art.
In domestic arbitration, legal writing does not answer the question in dispute uniformly. For certain writers, the discovery after the time limit expired of a reason to challenge should be invoked by way of a request for revision based on Art.
Other legal writers, however, rejected the idea that such a discovery could justify challenging an enforceable arbitral award Berger and Kellerhals, op. Comparative law is not very helpful in resolving the issue in dispute. It shows at best that certain countries such as England, Germany, and Italy do not provide for revision against awards issued in an international arbitration whilst the countries which chose the opposite solution such as France, Belgium and the Netherlands do not all allow for revision under the same conditions Poudret and Besson, op.
The parties to a dispute are free to remove certain disputes from their ordinary jurisdictions that may arise from the performance of a contract. When entering into an arbitration agreement, they voluntarily waive some of the rights guaranteed by the ECHR. Such waivers do not violate the convention as long as it is free, lawful, and unequivocal.
Whoever waives in advance the constitutional right Art. He must accordingly be given the means to act, should his expectations in this regard be frustrated, if he did not have the opportunity to rectify the situation pendent lite. It is only under this condition that he may be faced with an award that he will not really be able to appeal on the merits, except under the very restrictive angle of its incompatibility with substantive public policy within the meaning of Art.
The civil law appeal instituted by Art. However, since its admissibility depends upon compliance with a peremptory time limit of 30 days from the notification of the full award see Art.
It serves no purpose for the party discovering the ground for challenge falling within Art. The party losing before a sole arbitrator or an arbitral tribunal failing to meet the requirements of independence and impartiality whilst becoming aware of it only after the aforesaid time limit expired, may doubtlessly raise this procedural deficiency at the enforcement stage of the arbitral award by invoking one of the grounds to refuse recognition and enforcement listed at Art.
Thus, the deficiency at issue would certainly fall within Art. This would also leave aside cases such as a disciplinary sanction against a sports person, which would not require any enforcement ATF III at 4. Moreover, since the seat of the arbitral tribunal issuing the deficient award would necessarily be in Switzerland Art. The solution consisting of asking the aggrieved party to act at the enforcement stage of the award is therefore no panacea.
Therefore, revision of the award appears to be the only effective remedy in such a situation. More broadly speaking, it must be recalled that the federal legislature attaches importance to compliance with the guarantee of an independent and impartial tribunal as contained at Art. Evidence of this is that it would not tolerate that some ground for challenge discovered after the federal proceedings were closed would remain without consequence, but, to the contrary, made the provisions on revisions of judgments of the Federal Tribunal applicable in such a case Art.
Moreover, the legislature generalized the regulation heretofore reserved to the Federal Tribunal as an appeal body or as sole court see the reference at Art. Thus, Art. Admittedly, the provisions of the CPC concerning revision Art. The same remark may be made, moreover, with regard to the provisions governing domestic arbitration Art.
However, it is reasonable to wonder whether this is not mere oversight. However, when addressing the grounds for revision further down, it states that the draft essentially limits itself to the usual grounds of revision a crime-influenced decision, new evidence or facts discovered subsequently because procedural deficiencies must be challenged by way of the principal legal remedies appeal and recourse. The drafter of the message therefore appears to have forgotten the existence of the ground for revision specifically described by Art.
Be this as it may, the point is to take note that when the federal legislature adopted the aforesaid provisions of the draft without changes, the discovery after the fact of a ground for recusal was of such importance that it justified making such discovery into a specific ground for revision.
As to awards issued in domestic arbitration, the Message shows that the grounds which may justify revision of such awards correspond to the ones that may be invoked before a state court n.
The grounds for revision of Art. Neither does one see why the opposite solution should be adopted as to an award issued in an international arbitration. Indeed, when compliance with the essential guarantee of independence and impartiality of all members of an arbitral tribunal is at issue, it would hardly be defensible to turn away the party that would raise a violation of this guarantee, simply because its opponent had neither its domicile or its habitual residence in Switzerland at the time the arbitration agreement was entered into see Art.
Moreover, even if it is true that the solutions adopted in domestic arbitration do not necessarily apply to international arbitration and vice versa, ATF III at 2. In short, according to these writers, the federal legislature, when adopting Art. Therefore, it would not behoove judicial bodies to substitute their will for that of the legislative branch. However, the evidence on which the conclusion of these two writers is based is not very solid. It actually relies on only on two short passages of the Message of the Federal Council of February 28, , concerning the entire revision of the organization of federal courts in which it is pointed out, grosso modo, that the direct appeal to the Federal Tribunal contained in Art.
Taking this reasoning to the extreme, one may as well admit that the legislature, by its silence, intended to simply exclude any possibility of revision of international arbitral awards because such opportunities were not foreseen by the OJ but had been created praeter legem - by judge-made law.
In fact, everything leads one to believe, as the two aforesaid writers appear to acknowledge, that the legislature did not bother with the issue at hand here, nor, more generally, with the revision of international arbitral awards when it dealt with the provisions of the LTF. The aforesaid review would call for the necessity to admit that discovery of a ground that would have required the recusal of the sole arbitrator or of one of the members of the arbitral tribunal after the time limit to appeal an international arbitral award expired may lead to the submission of a request for revision of the aforesaid award to the Federal Tribunal, provided that the Petitioner could not have discovered the ground for recusal during the arbitral proceedings by paying the attention required under the circumstances.
However, the request for revision before this Court shall, in any event, be rejected for the reasons stated hereafter see at 3 and it does not appear appropriate to decide the issue in dispute definitively in this judgment.
The text of the bill emphasizes in particular the necessity to integrate certain essential elements of the case law of the Federal Tribunal issued since the entry in force of the PILA into the law, whilst correcting those that may need to be corrected.
Challenges and recusals of judges and arbitrators in international courts and tribunals
The PCA, a college of arbitrators, originated as an alternative to wars and arms race in Europe at the high noon of colonialism. The interwar bourgeoisie funded the ghostwriting of apathetic legal methods and capitalist norms in transnational tongues for the protection of alien investors. Post, the continuity of the structure of colonial legal arguments stood in the way of interrogating its essentialist ontology and capitalist teleology. As such, initially, the ICJ stood indifferent to the colonial question. In disputes arising due to the breach of colonial concession contracts, invertor-state tribunals billed the costs of producing legal norms to the new sovereigns.
The author would like to thank Ms Margrit Trein for research and editorial assistance. The two Members decided that, in the circumstances, there were no grounds for the disqualification of Mr Born. While the proposal for his disqualification was unsuccessful, Mr Born nonetheless decided to resign from the case. Slightly more than a month later, a similar challenge in a different set of proceedings, again involving Mr Born, was decided in the same manner, which also led to his resignation. This case revolves around measures taken by the Spanish Government in relation to renewable energy, in particular solar energy, which prompted a series of investment arbitration cases against Spain. The Decision itself contains little information on the background of the claim, but the case appears to be factually similar to the series of investment arbitrations initiated against Spain and other European States, such as the Czech Republic and Italy, concerning measures adopted in the renewable energy sector. In the present case, a group of legal entities established in Germany, and another eight individuals of German nationality, initiated arbitration proceedings against Spain.
Lucius Caflisch. They included general courts, such as the International Court of Justice, as well as specialist courts and tribunals dealing with specific areas of international law, such as trade, investment and human rights. Each issue will give you the latest developments with respect to the preparation, adoption, suspension, amendment and revision of Rules of Procedure as well as statutory and internal rules and other related matters. Pierre-Marie Dupuy. Homage to Judge Tullio Treves. Preliminary Material; Introduction. Pages
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Mr Ahmed Sallam. One of the primary sources of legitimacy of international arbitration in general is the independence and impartiality of arbitrators. Other grounds to disqualify arbitrators in investment arbitration are the nationality and the capacity. The challenging party will have to file promptly 12 its proposal to disqualify the arbitrator s with the Secretary-General, 13 after the constitution of the arbitral tribunal, who will transmit the proposal to the unchallenged arbitrators or to the Chairman of the Administrative Council, as the case may be.
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Pages Bernard H. Click here to read. General Aspects. Pierre-Marie Dupuy.
Mariya Nikolova, Manuel J. This article critically analyses the reasoning of the Trial and Appeals Chambers of the STL as well as that of President Baragwanath in his partially dissenting opinion. The authors question the conclusion that an international tribunal — created via a Chapter VII resolution — has no duty to verify whether it was lawfully established before it exercises its primary jurisdiction. Such an approach goes against existing authorities, moves away from the general trend of exercising judicial scrutiny over Security Council action, and creates an impression that the STL shies away from demonstrating its impartiality and independence as well as its compliance with the highest standards of international justice. The authors argue that it would have been more judicially sound to affirm the inherent power of the STL to rule on whether it was lawfully established or not.
Challenges and recusals of judges and arbitrators in international courts and 4 Arbitrator Challenges at the Iran-United States Claims Tribunal .pdf (showing the self-recusals of Judge Higgins and Judge Fleischhauer by informing the.
The PCA can assist in the selection of arbitrators, and may be called upon to designate or act as appointing authority. The PCA is also a center for scholarship and publication, and a forum for legal discourse. This Research Guide is intended as a starting point for research on the Permanent Court of Arbitration. It provides the basic legal materials available in the Peace Palace Library, both in print and electronic format. Handbooks, leading articles, bibliographies, periodicals, serial publications and documents of interest are presented in the Selective Bibliography section. Links to the PPL Catalogue are inserted.
No Civil law appeal was filed against the award but in August — when the time limit to appeal to the Federal Tribunal had run out — one of the parties became aware of the fact that an affiliate company of the company prevailing in the arbitration had received advice from the German member of the CMS network in an unrelated matter. A petition for revision was therefore submitted to the Federal Tribunal, seeking the recusal of the Arbitrator and the annulment of his award because the advice given by the German firm to a sister company of one of the parties to the arbitration had not been disclosed at the time. As our readers know, the undersigned on the left was a member of the CMS network until the end of and participated in the drafting of the briefs of the case. Whilst attempting to comment on the decision with full objectivity, he cannot claim to have been totally disinterested in the outcome at the time! The Federal Tribunal devotes quite some effort in the opinion to decide whether or not the matter was actually capable of revision.
This paper presents an analysis of the various dimensions of independence and impartiality. Among other things, I will argue that the two concepts, both of which are profoundly implicated in the rule of law, can be conceived as values and are perfectly distinguishable from each other. I will also propose a conception of neutrality, as a third distinct value that satisfies the requirement for non-redundancy with regard to independence and impartiality. Hence, judges and arbitrators must be independent, impartial and neutral. Each of these values contributes in different ways to enabling the law to fulfil its distinctive function of facilitating social interaction in complex and plural societies.
Each issue will give you the latest developments with respect to the preparation, adoption, suspension, amendment and revision of Rules of Procedure as well as statutory and internal rules and other related matters. To be sure, the multiplication of interna- tional courts and tribunals as such is not a problem. Evaluating the Performance of International Courts and Tribunals judicial integration and fragmentation in the international legal system international courts and tribunals Nov 25, Posted By Georges Simenon Public Library TEXT ID acd5f Online PDF Ebook Epub Library and fragmentation in the international legal system iii methodology iv structure 2 genocide i introduction ii the context in which the law on genocide is being adjudicated a features of international courts and tribunals.
Finding International Cases. Cases may be differently named in each source. For example, you may see the SS Lotus case cited as:.
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