Abstrak

Kembali

This article considers the recent flurry of successful challenges to arbitrators in International Centre for the Settlement of Investment Disputes (ICSID) arbitrations and the statistical context and significance of those decisions in light of the notoriously high historical standard for disqualifying ICSID arbitrators. Specifically, it analyses: (i) the reasoning applied in those recent challenges; (ii) whether the disqualification standards adopted in these decisions represent a notable departure from previous ICSID challenge decisions; and (iii) whether the reasoning applied in each case supports the decisions reached. The article then examines whether the decisions have addressed commentators’ primary criticisms of previous ICSID challenge decisions, in particular, the high hurdle for challenges at ICSID to be successful compared with other major arbitral decisions. In reaching the conclusion that the underlying rationale for the decisions was far from groundbreaking and, in fact, could even be described as regressive in the wider history of disqualifying arbitrators at ICSID, the article argues that a radical new interpretive approach is required for future challenges. Until such an approach is adopted—which enables a more reasoned consideration of the true intentions of the ICSID Convention drafters— criticisms of the system for disqualifying arbitrators at ICSID are likely to persist.