An ICSID tribunal has rejected Argentina's challenge to an arbitrator, advanced on the basis of the arbitrator's published academic articles. Argentina argued that the articles (which discussed the effect of most favoured nation clauses and the defence of necessity in international law) demonstrated that the arbitrator had prejudged issues which would arise in the arbitration, and that he therefore did not meet the requirement of independence and impartiality imposed by Article 14 of the ICSID Convention.

The decision includes detailed discussion of the significance of scholarly opinions expressed in articles and other published works, and adopts a robust approach to the question of whether such views might amount to impartiality or lack of independence for the purposes of the ICSID Convention.

The tribunal noted that the Spanish version of Article 14 refers to impartiality (imparcialidad) whereas the English version refers to "independent judgment". Since the English and Spanish versions are equally authentic, both notions of independence and impartiality were relevant (and in any event overlapped substantially). The crux of the issue was whether the opinions expressed by the arbitrator indicated a manifest lack of the qualities required to provide independent and impartial judgment. This depended on whether he was able to consider and evaluate the merits of each case without relying on factors having no relation to such merits. On the evidence, the arbitrator satisfied this test.

The tribunal considered the International Bar Association (IBA) Rules of Ethics, which refer to partiality arising where an arbitrator is prejudiced in relation to the subject matter of the dispute (Rule 3.1) or where an arbitrator has already "taken a position" in relation to the outcome of the dispute (Rule 3.2). In the tribunal's view, these provisions did not mean that any position taken on a particular issue to be raised in arbitration (rather than on the outcome of the arbitration as a whole) would suffice to establish bias. Still less would positions taken in respect of legal concepts in isolation from the facts and circumstances of a particular case, amount to bias.

Nor was there any appearance of bias. A reasonable person would not consider that the arbitrator would rely on the expressed academic opinions without giving proper consideration to the facts, circumstances and arguments in the arbitral proceedings.

Finally, to exclude arbitrators on the basis of previously expressed academic opinions would stifle debate, and would also mean that many ICSID arbitrators would be open to challenge.

In all the circumstances, the application was dismissed.

The decision of the tribunal confirms that merely expressing an academic opinion, even if relevant to a particular arbitration, should not be sufficient to sustain a challenge for lack of independence or impartiality. It is necessary to go further and establish that a reasonable and informed third party would conclude that the arbitrator would rely on the opinions without giving proper consideration to the facts, circumstances and arguments in the proceedings. That test will usually be difficult to satisfy where there is no evidence of a relationship with a witness or party or some interest in the outcome of the dispute.

Case: Urbaser SA and another v Argentina (ICSID Case No ARB/07/27) (Decision on Claimants' Proposal to Disqualify) (12 August 2010).