Challenge of arbitrators

[UPDATED with full analysis] – Another challenge to Gary Born is rejected, this time by Bruno Simma and Daniel Bethlehem in the KS Invest & TLS Invest v. Spain case | Investment Arbitration Reporter

More precisely, Spain sought the disqualification of Mr. Born on the ground that he allegedly “reached an immutable and biased position on key issues at stake in this arbitration,” such as “the assessment of investors’ expectations (which he does not seem to balance against any other consideration in his dissent); the legal effect of regulatory measures concerning renewable energy prices (which he views as unqualified commitments of stabilization) and the applicability and effects of EU Law (which he largely downplays if not to reinforce investor’s expectations).”

As to Mr. Born’s conduct during the Masdar and KS Invest hearings, Spain notably saw bias in his interruption of the cross-examination of a witness for Spain, and in an allegedly “disdainful comment” he made to this witness. Spain compared this “attitude” to the circumstances that led to the successful challenge of Francisco Orrego Vicuna as an arbitrator in Burlington v. Ecuador (see here).

Concluding, the unchallenged arbitrators held that Mr. Born “acted entirely properly, within the bounds of independence and impartiality required of an arbitrator,” and found “no basis” to Spain’s suggestions that his impartiality and independence were impaired.

Challenge filed against Eduardo Zuleta as hearings loom | Investment Arbitration Reporter

As we’ve chronicled, Spain has sought to dislodge several arbitrators in the battery of renewable energy arbitrations currently pending. A pair of challenges directed at Gary Born were rejected by his co-arbitrators, however Mr. Born later resigned from the ICSID cases in question. A separate challenge to Stanimir Alexandrov led to a split decision between the remaining tribunal members, leading him to resign despite insisting that the challenge had no merits.