Procedural Posture

This document is a Decision on the Claimant’s Proposal to Disqualify Professor Philippe Sands, the arbitrator appointed by the Respondent, Turkmenistan, in an ICSID arbitration initiated by Buried Hill Serdar Limited. The decision was rendered by the unchallenged arbitrators, Mr. Eduardo Siqueiros (President) and Mr. Michael Goldberg, pursuant to Article 58 of the ICSID Convention and ICSID Arbitration Rule 23(1).

Principal Legal Issues and Parties' Positions

The core issue before the unchallenged arbitrators was whether Professor Sands’ concurrent appointment in a related ICC commercial arbitration—brought by the same Claimant against the State Concern Turkmennebit—manifested a lack of independence and impartiality under Articles 57 and 14(1) of the ICSID Convention. The Claimant argued that the overlapping factual matrix, identical underlying asset (the Serdar/Dostluk oil field), and commonality of witnesses and experts between the two proceedings created an unacceptable risk of prejudgment or unconscious bias. Furthermore, the Claimant contended that Professor Sands’ exposure to evidence and tribunal deliberations in the ICC arbitration would generate a manifest asymmetry of information within the ICSID tribunal.

The Respondent and Professor Sands opposed the disqualification proposal. They emphasized that the two arbitrations involved fundamentally distinct legal claims (contractual breaches under local law versus treaty breaches under international law). The Respondent argued that an experienced arbitrator is fully capable of compartmentalizing information and that the Claimant, being a party to both proceedings, maintained control over the evidentiary record, thereby neutralizing any risk of informational asymmetry.

Tribunal's Analysis and Findings

Applying an objective standard based on a reasonable third party’s evaluation of the evidence, the unchallenged arbitrators bifurcated their analysis into two grounds: the risk of prejudgment and the asymmetry of information. The unchallenged arbitrators dismissed the first ground, finding that the mere existence of parallel proceedings with shared facts and witnesses does not inherently establish unconscious bias, particularly given Professor Sands’ vast experience and recognized capacity to assess evidence independently.

However, the unchallenged arbitrators upheld the challenge on the second ground. They determined that Professor Sands would inevitably be exposed to documentary evidence, witness testimony, and the internal deliberations of the ICC tribunal prior to the presentation of such evidence in the ICSID proceeding. This prior exposure would deprive the ICSID tribunal of spontaneity in evaluating witness credibility and evidence. The unchallenged arbitrators concluded that this dynamic would create a clear asymmetry and imbalance of information within the ICSID tribunal, as Professor Sands would possess perspectives and insights unavailable to his co-arbitrators.

Operative Decision

Consequently, the unchallenged arbitrators concluded that the participation of Professor Sands in the concurrent ICC arbitration created an unacceptable asymmetry of information. The proposal to disqualify Professor Sands was accepted, and the decision on costs arising from the challenge was reserved for a later stage of the proceedings.