Challenge of Arbitrators in ICSID Investment Arbitration: A Critique and an Appropriate Solution

Abstract

Challenge of arbitrators is a controversial issue in international arbitration in general and in ICSID Arbitration in particular. There is a consensus that the lack of impartiality and independency leads arbitrators to be challenged. However, there is a duality of standards for challenging arbitrators. In international commercial arbitration and international investment arbitration which are not based on the Washington Convention, the standard is based on the standard of "reasonable doubt". By contrast, ICSID Arbitration adheres to the criterion of "lack of manifest" by virtue of Article 57 of the Washington Convention. The majority of ICSID Tribunals make a distinction between ICSID Arbitration and non-ICSID arbitration, which is unsatisfactory and could be criticised. By evaluating pertinent ICSID Arbitration cases, this Article argues that ICSID regime is ambiguous in terms of the challenge of arbitrators. It concludes that for the purpose of adopting a unitary standard for the challenge of arbitrators in international arbitration, ICSID Arbitration Rules as amended in 2006 and some ICSID cases have provided the basis for invoking the standard of "reasonable doubt".

Keywords

• "challenge of arbitrators"
• "icsid investment arbitration"
• "international arbitration"
• "washington convention"
• "reasonable and justifiable doubts"