CHALLENGE TO JUDGE GREENWOOD IN UK V MAURITIUSAs part of Law and Policy of International Courts and Tribunals, UCL2 November 2015

Prepared by Ilse Reyes Tadillo and Jedsarit Sahussarungsi

PRESENTATION OUTLINE• Factual Background• Mauritius’s Position• UK’s Position• Judge Greenwood’s Comments• The Tribunal’s Analysis• Observations

FACTUAL BACKGROUND• [to be inserted]

MAURITIUS’S POSITION

• [to be inserted]

UK’S POSITION

• Standard to be applied • Rejecting (i) justifiable doubts test due to lack of textual basis; and (ii)

practices of commercial and investment arbitration and IBA Guidelines• In absence of laws applicable to the challenge, rules and practice of inter-

state courts and tribunals (i.e. ICJ and ITLOS) should be regarded as they are identical in nature

• Specific Prior Involvement Standard – actual prior involvement in the subject matter of the case

• Practices: ICJ – challenge to Judge Elaraby in construction of wall in Palestine case; ITLOS – Judge Anderson in MOX plant case; Arbitral tribunals - Sir Arthur Watts in MOX Plant arbitration

UK’S POSITION

• Application of Standard and Risk of Annulment • Fulfilment of (i) standard of impartiality (Art.2(1) of Annex VII); and (ii)

standard of independence (Art.3(e) of Annex VII)• No actual bias – no act related to the subject matter of the current dispute• Even if IBA Guidelines were applicable, he is independent and has no

continuing close relationship with the UK(one-off and strict time-limited nature of activity)

• Risk of Annulment does not exist – (i) “final and without appeal” character of the award under Art. 10 of Annex VII; (ii) in case of intervention, Netherlands would breach international law; (iii) binding even Dutch court were to decide such a case; and (iv) case cited by Mauritius has nothing to do with inter-state arbitration;

• Declaration made at the ICJ• No involvement with UK or any

other state in relation to the current dispute

• Being on the Board because of his independence and seniority

• One-off nature and not a relationship with the UK

• Also appointed against UK in many cases

JUDGE GREENWOOD’S COMMENTS

THE TRIBUNAL’S ANALYSIS• Requirements of “fairness, competence and integrity as

general principles of international law from practice of international courts and tribunals

• Justifiable doubts test are applied without grounds• Practice of PCA for arbitrators to furnish a Declaration of

Acceptance and a Statement of Impartiality and Independence • Consideration of practices of ICJ and inter-state arbitral

tribunals• Rejection of practices of international investment and

commercial arbitrations and IBA Guidelines

THE TRIBUNAL’S ANALYSIS• No involvement in the present dispute before appointment• No persuasive evidence of prior activities as counsels which give

rise to justifiable doubts as to his independence or impartiality• No evidence of the general practice of ICJ or ITLOS on the precise

point at issue, just opinions of jurists• Participation on the Board was “advisory only” (i.e. candidates’

suitability) and “did not entail legal advice on legal issues”; unanimous decision and limited duration;

• Rejection of “continuing” relationship argument – “particular purpose” and “brief participation” neither constituted nor continued an already existing relationship”

• therefore not giving rise to justifiable doubts as to his impartiality and independence concerning the case to be decided

OBSERVATIONS• Applicable laws - balance between “inter-state” and “arbitration”

to be struck?• Inter-state nature = stricter requirement (argumentum a fortiori)?• Ground and criteria for ‘justifiable doubts test’ – a missing piece?• Role of “Declaration of Acceptance and a Statement of

Impartiality and Independence”?• CIL = SP and OJ of states or international courts and tribunals?• How about relationship between judge and FCO legal advisor? A

new and continuing relationship? justifiable doubt test?

BIG PICTURE QUESTIONS• Repeated use of a limited number of arbitrators in a growing

market of international arbitration? • Challenge = procedural posture to delay and protract

proceedings?• Decision by other members of the arbitral tribunals? Uneasy

situation for arbitrators? Impartiality question?

THANK YOU