ICSID Arbitration – Plus de liaisons dangereuses?

Spanish electricity company Orazul International España Holdings S.L. loses its disqualification proposal against the presiding arbitrator Inka Hanefeld in a dispute against República Argentina.

The Spaniards alleged that she failed to disclose her relationship with Argentina’s legal expert Prof. Jorge Viñuales on the tribunal that issued the notorious award in the ‘Green Power’ case against the Kingdom of Spain in 2022, where both were co-arbitrators in the Stockholm Chamber of Commerce arbitration (Green Power Partners K/S, SCE Solar Don Benito APS v. the Kingdom of Spain).

Many will recall that this ’cause célèbre’ was brought by the Danish investor group Green Power Partners against Spain. The decision was the first time an arbitration tribunal declined a claim based on an intra-EU jurisdictional objection.

Accordingly, the claimant in this arbitration against Argentina, Orazul, alleges that although Viñuales is acting as Argentina’s expert in the present case, 𝗗𝗿 𝗛𝗮𝗻𝗲𝗳𝗲𝗹𝗱’𝘀 𝗰𝗼𝗻𝗱𝘂𝗰𝘁 𝗱𝘂𝗿𝗶𝗻𝗴 𝘁𝗵𝗲 𝗛𝗲𝗮𝗿𝗶𝗻𝗴 𝗵𝗮𝘀 𝗰𝗼𝗻𝗳𝗶𝗿𝗺𝗲𝗱 𝗵𝗲𝗿 𝗯𝗶𝗮𝘀 𝘁𝗼𝘄𝗮𝗿𝗱𝘀 𝗔𝗿𝗴𝗲𝗻𝘁𝗶𝗻𝗮, 𝗼𝗿 𝗮𝘁 𝘁𝗵𝗲 𝘃𝗲𝗿𝘆 𝗹𝗲𝗮𝘀𝘁, 𝗵𝗲𝗿 𝗹𝗮𝗰𝗸 𝗼𝗳 𝗶𝗺𝗽𝗮𝗿𝘁𝗶𝗮𝗹𝗶𝘁𝘆 𝘄𝗶𝘁𝗵 𝗿𝗲𝘀𝗽𝗲𝗰𝘁 𝘁𝗼 𝗖𝗹𝗮𝗶𝗺𝗮𝗻𝘁.

In its decision, the rest of the ICSID tribunal considered that even though the ‘Green Power’ award became public in late June, Orazul waited until September to complain about Hanefeld’s failure to disclose her connection to Viñuales.

Furthermore, according to the arbitrators, “the questioning by Dr. Hanefeld, taken in the whole context of the hearing, does not rise to the level of bias or dependence,”.

Interestingly they admit a preferable technique by their fellow arbitrator: “We agree that it is preferable for an arbitrator to put questions in an open, rather than a conclusory, manner. But, we do not accept the claimant’s contention that Dr. Hanefeld’s manner of questioning showed a bias or pre-judgement.” (!)

However, among other reasons, the arbitrators decline the proposed disqualification of Dr. Hanefeld under Articles 57 and
14(1) of the ICSID Convention.

May the close relations of the “regulars” in investment arbitration remain a cause for concern or, even worse, a source of mistrust?

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