Saturday, May 15, 2010

Everybody hates Bolivia: At least every arbitrator does according to Bolivia

In an interesting development, Bolivia has challenged all three members of an ICSID tribunal hearing an investment dispute against it on the ground of bias. The Tribunal had asked Bolivia to suspend criminal investigation against one of the claimants. Though a preliminary report appears here, no further details are available. As per Article 58 of the ICSID Convention, the decision on the Challenge will have to be taken by the President of the World Bank acting as ex-officio Chairman of ICSID as the challenge concerns a majority of arbitrators. 

Bolivia, after a period of strained relationship with ICSID, served a notice under Article 71 of the Convention on May 2, 2007 denouncing the Convention. The same came to effect on November 3, 2007. However, this does not exclude the jurisdiction of ICSID tribunals in matters filed before the date of withdrawal. Moreover, there are several Bilateral Investment Treaties currently in force in which Bolivia accepts the jurisdiction of ICSID. As these BITs have not been revoked, ICSID tribunals will continue to enjoy jurisdiction in disputes arising out of them.

On a different note, Prof. Gary Born recently argued on the Kluwer Arbitration Blog that institutions must publish their decisions on challenges to arbitrators so that other parties, while deciding on the choice of arbitrators, may be guided by these decisions. ICSID regularly publishes most of its decisions, including decisions on challenges to arbitrators. It will be interesting to read the decision on Bolivia's challenge when published.

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