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Alpha Projektholding v. Ukraine

Type of decisionDecision on Respondent's Proposal to Disqualify Arbitrator Dr. Yoram Turbowicz
Date of decision19 March 2010
Tribunal
Davis R. Robinson (President)
Stanimir Alexandrov
Legal instrumentBIT between Austria and Ukraine (1996)
Related decision(s)Award, 8 November 2010
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Statements from this decision

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Articles 31 to 33 of VCLT are declaratory of existing customary international law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
To analyse an arbitrator's reliability to exercise independent judgement, a tribunal has to separately consider the arbitrator's impartiality and independence
Article 14 ICSID Convention does not require that an arbitrator has prior arbitral experience in an ICSID case
A party-appointment system inherently presumes a form of acquaintance between the arbitrator and the party; thus, for determining impartiality and independence, the nature and extent of the acquaintance are relevant under Article 57 ICSID Convention, not the existence of the acquaintance alone
The term "manifest" within the meaning of Article 57 ICSID Convention means "obvious" or "evident"
There is a heavy burden of proof on the party asserting a lack of impartiality or independence of an arbitrator
The scope of the disclosure declaration of Rule 6 ICSID Arbitration Rules is broader than the requirements of Article 57 ICSID Convention, which raises the question of what facts need to be disclosed to avoid the disqualification as an arbitrator
Lack of independence and impartiality implicate states of mind, which on an objective basis can only be inferred from the arbitrator's conduct
A shared education of an arbitrator and a party's legal counsel is not in itself evidence of the arbitrator's lack of independence or impartiality
The scope of the disclosure declaration of Rule 6 ICSID Arbitration Rules is broader than the requirements of Article 57 ICSID Convention, which raises the question of what facts need to be disclosed to avoid the disqualification as an arbitrator
Within Rule 6 ICSID Arbitration Rules, the shared education of an arbitrator and a party's legal counsel does not require disclosure
To decide which facts an arbitrator has to disclose under Rule 6 ICSID Arbitration Rules, a tribunal can seek guidance from the IBA Guidelines
Rule 6 ICSID Arbitration Rules does not require an arbitrator to disclose an initial contact with one of the parties prior to his or her appointment, if the contact is limited to the arbitrator's availability or his or her qualifications

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