The dispute concerned measures implemented by Spain that altered the regulatory and economic regime of renewable energy projects, that failed to grant fair and equitable treatment to the Eiser parties pursuant to article 10(1) … 31 Tethyan Copper Company Pty Ltd v Islamic Republic of Pakistan (Federal Court of Australia NSD1749/2019, commenced 17 October 2019). [8] ICSID Arbitration Rules (2003), Article 6. In its recent decision in the case of Eiser Infrastructure Limited and Energia Solar Luxemburg S.à r.l. This publication covers legal and technical issues in a general way. Richard Happ Pratyush Nath Upreti 44. However, the Working Group III was also responsible for the conceptualisation of the Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, released by the ICSID and the UNCITRAL. The third option, in Art 26(2)(c) with … Orçun Çetinkaya ( para. Practical Implications of the New Legal Framework for Foreign Direct Investment in the European Union. This dispute relates to measures implemented by Respondent modifying the regulatory and On 25 March 2020, five affiliates of Infrared Capital Partners, a UK-based infrastructure and real estate investment manager, applied to the US District Court for the District of Columbia to enforce the ICSID award rendered in InfraRed Environmental Infrastructure GP Ltd. et al. 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. Case report by: Francisco Zuluaga Ospina**, Editor Diego Luis Alonso Massa*** Summary: In a decision rendered on May 4, 2017, the International Centre for Settlement of Spain had made their case for annulment of the award on two broad grounds. Other remedy: The Respondent shall pay interest on the sum awarded at a rate determined by the Tribunal. Diora Ziyaeva Dentons, New York diora.ziyaeva@dentons.com . It thus held that the failure to disclose had a “material effect” on the proceedings, and thus the tribunal had seriously departed from a fundamental rule of procedure under Art. Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. The failure of Mr. Alexandrov to make a timely disclosure of the conflict resulted not only in declining Spain the opportunity to challenge his position on the tribunal, but also in influencing the decision of the other members of the tribunal with his continued presence on the tribunal, which in the eyes of the committee, would raise a reasonable suspicion of bias to any independent observer. Marco Bronckers ARB/03/19). [6]Noah Rubins and Bernard Lauterberg, ‘Independence, Impartiality and Duty of Disclosure in Investment Arbitration’ in Christina Knahr, Chrishtian Koller et al., Investment and Commercial Arbitration – Similarities and Divergences (Eleven International Publshing, 2010). It also noted that “a clear and … v Kingdom of Spain (ICSID Case No. Turning to the second step, the committee had to determine whether the standard for disqualification had been met. Date d'introduction : 23 déc. [4]. ARB/13/36 Type d'affaire : Investisseur-État. [14]. This constituted a departure from a fundamental rule procedure as it affected Spain’s right to a fair trial and the right to be heard by an independent and impartial decision-maker. 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. 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. ARB/13/36, May 4, 2017. 4. 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). Pawel Sikora Back to Power Law Committee publications. The Respondent shall bear Claimants’ share of the costs of the arbitration proceeding as well as their legal representation costs and expenses. Lapuerta acted as an expert on economic analysis and financial valuation in the Eiser v. Spain arbitration, See Arbitral Award, ICSID Case No. [16] Another radical change that the Dutch Model BIT makes is to completely do away with party-appointed arbitrators, and instil the power to appoint arbitrators solely to a competent appointing authority. Emma Spiteri-Gonzi The Energy Charter Treaty (1994) Nationality of the parties. À la différence de l’affaire Charanne, ils arguaient qu’un ensemble de réglementations adoptées entre 2012 et 2014 avaient violé leurs droits au titre du TCE, entrainant une dévaluation significative de leurs investissements et forçant leurs filiales espagnoles à négocier une … [5] With respect to investment treaty arbitration, the requirement of independence and impartiality assumes much accentuated significance, as a result of the public interest element, and the political and economic ramifications of the decision on the Respondent State. Horia Ciurtin The award is available at https://www.italaw.com/cases/5721 Keywords Energy transition, feed-in tariffs, … Finally, the committee examined whether there had been a serious departure from a fundamental rule of procedure, and if such departure was serious in terms of Art. 52(1)(a). Arbitrators must be extremely wary of such conflicts, and comply with the best practice of early and prompt disclosure to the best of their abilities. The Underlying Arbitration involved Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. (English) Eiser v. Spain. Editor-in-Chief 5 (2020). Eiser and Energía Solar v. Spain Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. Mirjam van de Hel-Koedoot, Georges Affaki v. Spain and requiring Spain to pay over €28.2 million for violating the ECT. According to Eiser, its decision to invest in Spain was based on RD 661/2007. Analysis: Eiser v. Spain annulment committee stresses its role as guardian of the ICSID system, imposes a “high” bar for double hatting, and finds that numerous undisclosed past and present connections between an arbitrator and the claimants’ quantum experts warrants annulment of … 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. Emanuela Matei 206). v. Kingdom of Spain, Abogacia General del Estado Calle Ayala, 5 28001 - Madrid Spain Respondent. 52(1)(d) of the ICSID Rules. also Isolux Netherlands, BV v. 2021 International Institute for Sustainable Development ARB/13/36 (the “Award”). Sophie Nappert 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. 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. In this sense, the committee found that the relationship between Alexandrov and Lapuerta created a manifest appearance of bias and, therefore, Alexandrov had an obligation to disclose this relationship (paras 220-228). En 2017, le tribunal de l’affaire Eiser c. l’Espagne se prononça en faveur des investisseurs de trois centrales thermiques. 52(1)(d) of the ICSID Rules. By Sumit Chatterjee (National Law School of India University, Bangalore) An ICSID Committee, chaired by Ricardo Ramirez-Hernandez, recently annulled an arbitral award rendered in favour of a solar power investor in the case of Eiser Infrastructre Ltd. v Republic of Spain. [8]. v. Kingdom of Spain, ICSID Case No. By Sumit Chatterjee (National Law School of India University, Bangalore), An ICSID Committee, chaired by Ricardo Ramirez-Hernandez, recently annulled an arbitral award rendered in favour of a solar power investor in the case of Eiser Infrastructre Ltd. v Republic of Spain. Enter your email address to follow this blog and receive notifications of new posts by email. As a consequence, it claimed that the value of its investment was reduced significantly. Managing Editor Spain put forward several arguments for annulment of the award. EFILA Paper Regarding the Proposed 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. Loukas Mistelis ARB/13/36 Spain maintains that the ad hoc Committee in Eiser merely followed the decision of the ad hoc Committee in Total v. Argentina on key issues and in doing so, deviated from the standard practice of ICSID ad hoc Committees. SolEs Badajoz v. Spain; 2015. Case Document Date Name of the parties Subject-matter Curia EUR-Lex; C-145/04: Judgment (OJ) 18/11/2006: Spain v United Kingdom The jury is still out on whether the setting up of an international investment adjudicatory body is in the best interests of resolving all the problems that exist in the investor-state dispute resolution settlement mechanism, but the Eiser decision has, by taking a firm stand against any minutiae of an appearance of bias, shown that the present system is also well equipped to provide parties what they wish for: a neutral, efficient and fair result. One of the overarching concerns in this regard is of role confusion, which refers to the situation where arbitrators try to issue an award that would be favourable for them in a case where they are representing a different client as counsel. After concluding that review under Art. ), © v. Kingdom of Spain, ICSID Case No. It was soon discovered that during the proceedings themselves, Mr. Alexandrov had been acting as counsel of a reputed law firm in other arbitration proceedings, and had employed the services of the Brattle group as experts. ARB/13/36, available at https://www.italaw.com/sites/default/files/case-documents/italaw9050.pdf, [3] ICSID Case No. Civil Action No. The Committee also stated that the failure on the part of Mr. Alexandrov to disclose this conflict had severe effects on the proceedings themselves, as it hampered the constitution of an independent tribunal, and also adversely affected Spain’s right to a fair arbitration. ARB/12/20). 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. If not, has the party seeking annulment established that a third party would find evident or obvious lack of impartiality or independence on the part of an arbitrator on a reasonable evaluation of the facts of the case (the Blue Bank standard)? (“Eiser”) bring this action to enforce an … The ICSID committee, by recognising the failure to disclose the conflict as a ground to annul the award, has illustrated the extremely serious implications of double-hatting in an investment arbitration, where it can cast a shadow over a successful award rendered in favour of a party, and ultimately lead to its annulment. Global Arbitration Review An agreement by a foreign state to waive its immunity under Pt II has effect to waive that immunity and the waiver may not be withdrawn except in accordance with the terms of the agreement (Immunities Act, s 10(5)). [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.”. The first line of reasoning was followed by 5 tribunals … The need for reform to combat the predicament of double hatting has been all the more pronounced as a result of the prevailing no-man’s land with respect to ethical standards that prevail in arbitration proceedings, not just for legal counsels, but also for arbitrators.
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