Procedural Context and Issues

This document is a decision rendered by the unchallenged members of the Arbitral Tribunal, President Klaus Sachs and Co-Arbitrator Charles N. Brower, on the Claimant's proposal to disqualify the Respondent-appointed arbitrator, Mr. Gabriel Bottini. The challenge was brought under Article 57 of the ICSID Convention, alleging a manifest lack of the qualities of independence and impartiality required by Article 14(1).

The challenge was based on two principal grounds: (i) Mr. Bottini's recent employment as National Director of International Matters and Disputes for the Government of Argentina, a role he held at the time of his appointment; and (ii) his past professional relationship with Argentina's former Attorney General, who was acting as counsel for Venezuela in another ICSID case.

Parties' Submissions and Tribunal's Analysis

The Claimant argued that Mr. Bottini's former government position was political in nature and created an "issue conflict," as he had advocated for Argentina on legal issues similar to those likely to arise in the present arbitration. The Claimant contended that his resignation, effective after his appointment, was insufficient to cure the appearance of bias. The Respondent countered that the "manifest lack" standard imposes a high burden of proof, which the Claimant had not met. It argued that Mr. Bottini's role was with a non-party State, was not political, and had terminated before he performed any arbitral functions, thus eliminating any potential incompatibility.

The tribunal analyzed the "manifest lack" standard, affirming it requires facts that make it "obvious and highly probable" that an arbitrator cannot exercise independent judgment. While considering the incompatibility rules of the ICJ Statute by analogy, the tribunal found them of limited relevance given the ad hoc nature of ICSID appointments. It held that the dispositive fact was Mr. Bottini's complete resignation from his government post before undertaking any arbitral duties, severing any potential dependency. The tribunal rejected the "issue conflict" argument, finding no evidence that Mr. Bottini would be bound by past positions advocated as counsel. It distinguished the case from situations involving simultaneous roles as counsel and arbitrator, affirming the professional capacity of a lawyer to maintain distance from past advocacy. The challenge based on the past relationship with Mr. Guglielmino was also dismissed as the relationship had ended three years prior.

Decision

The tribunal rejected the Claimant's proposal to disqualify Mr. Bottini. The rejection was made on the condition that Mr. Bottini complete, sign, and transmit a new declaration under Rule 6 of the ICSID Arbitration Rules to the ICSID Secretary-General within ten days of the date of the decision. The costs associated with the challenge proceeding were reserved.