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CHALLENGE TO JUDGE

GREENWOOD IN UK V MAURITIUS
As part of Law and Policy of International Courts and Tribunals, UCL
2 November 2015
Prepared by Ilse Reyes Tadillo and Jedsarit Sahussarungsi

PRESENTATION OUTLINE

Factual Background

Mauritiuss Position

UKs Position

Judge Greenwoods Comments

The Tribunals Analysis

Observations

FACTUAL BACKGROUND

[to be inserted]

MAURITIUSS POSITION

[to be inserted]

UKS POSITION

Standard to be applied

Rejecting (i) justifiable doubts test due to lack of textual basis; and (ii)
practices of commercial and investment arbitration and IBA Guidelines

In absence of laws applicable to the challenge, rules and practice of interstate courts and tribunals (i.e. ICJ and ITLOS) should be regarded as they are
identical in nature

Specific Prior Involvement Standard actual prior involvement in the subject


matter of the case

Practices: ICJ challenge to Judge Elaraby in construction of wall in Palestine


case; ITLOS Judge Anderson in MOX plant case; Arbitral tribunals - Sir
Arthur Watts in MOX Plant arbitration

UKS POSITION

Application of Standard and Risk of Annulment

Fulfilment of (i) standard of impartiality (Art.2(1) of Annex VII); and (ii) standard
of independence (Art.3(e) of Annex VII)

No actual bias no act related to the subject matter of the current dispute

Even if IBA Guidelines were applicable, he is independent and has no continuing


close relationship with the UK(one-off and strict time-limited nature of activity)

Risk of Annulment does not exist (i) final and without appeal character of
the award under Art. 10 of Annex VII; (ii) in case of intervention, Netherlands
would breach international law; (iii) binding even Dutch court were to decide
such a case; and (iv) case cited by Mauritius has nothing to do with inter-state
arbitration;

JUDGE GREENWOODS
COMMENTS

Declaration made at the ICJ

No involvement with UK or any


other state in relation to the
current dispute

Being on the Board because of


his independence and seniority

One-off nature and not a


relationship with the UK

Also appointed against UK in


many cases

THE TRIBUNALS ANALYSIS

Requirements of fairness, competence and integrity as


general principles of international law from practice of
international courts and tribunals

Justifiable doubts test are applied without grounds

Practice of PCA for arbitrators to furnish a Declaration of


Acceptance and a Statement of Impartiality and Independence

Consideration of practices of ICJ and inter-state arbitral


tribunals

Rejection of practices of international investment and


commercial arbitrations and IBA Guidelines

THE TRIBUNALS ANALYSIS

No involvement in the present dispute before appointment

No persuasive evidence of prior activities as counsels which give


rise to justifiable doubts as to his independence or impartiality

No evidence of the general practice of ICJ or ITLOS on the precise


point at issue, just opinions of jurists

Participation on the Board was advisory only (i.e. candidates


suitability) and did not entail legal advice on legal issues;
unanimous decision and limited duration;

Rejection of continuing relationship argument particular


purpose and brief participation neither constituted nor
continued an already existing relationship

therefore not giving rise to justifiable doubts as to his impartiality


and independence concerning the case to be decided

OBSERVATIONS

Applicable laws - balance between inter-state and arbitration


to be struck?

Inter-state nature = stricter requirement (argumentum a fortiori)?

Ground and criteria for justifiable doubts test a missing piece?

Role of Declaration of Acceptance and a Statement of


Impartiality and Independence?

CIL = SP and OJ of states or international courts and tribunals?

How about relationship between judge and FCO legal advisor? A


new and continuing relationship? justifiable doubt test?

BIG PICTURE QUESTIONS

Repeated use of a limited number of arbitrators in a growing


market of international arbitration?

Challenge = procedural posture to delay and protract


proceedings?

Decision by other members of the arbitral tribunals? Uneasy


situation for arbitrators? Impartiality question?

THANK YOU