This decision relates to the Respondent’s request to disqualify one of the arbitrators, namely Mr. Bernardo M. Cremades, who had been appointed by the Claimant.
The Claimant had filed for arbitration at the ICSID on 29 September 2011 under the ICSID Convention and the Investment Code of the Republic of Guinea. The Parties agreed that the Arbitral Tribunal would be constituted by three arbitrators. The Claimant chose Mr. Bernardo M. Cremades, who accepted his appointment and was confirmed by the Respondent. The Respondent picked Professor Pierre Tercier as an arbitrator who also confirmed his appointment. Then, on 20 January 2012, both parties agreed to appoint Mrs. Vera Van Houtte, as President of the Arbitral Tribunal, who also confirmed her appointment.
Shortly afterwards, in March 2012, the Respondent indicated its intent to file a request to disqualify Mr. Bernado M. Cremades because of a family relationship with Mr. Juan Antonio Cremades, who was also an arbitrator who had been appointed by the same Claimant in another parallel, OHADA arbitration, concerning the same facts.
Articles 14(1), 57 and 58 of the ICSID Convention govern the rules for requests for disqualification. They provide that, in order to succeed, a request for disqualification that is grounded on an alleged lack of independence must show the facts in question, that these facts lead to a manifest lack of independence, and the request must be submitted as soon as possible. The duty of independence and impartiality is an objective one. Its manifest lack must be clearly proved by tangible facts, rather than speculation.
The Arbitral Tribunal rejected the request for disqualification, explaining that the Respondent had not satisfied its burden of proof.
The Arbitral Tribunal noted that a family relationship between the two brother arbitrators might appear dubious, but the Tribunal disagreed that this meant that M. Cremades would communicate privileged information with his brother and violate his ethical duties or that this meant that there was a risk of influence on the judgment of M. Cremades.
It also ruled that M. Cremades’ failure to declare that his brother was also an arbitrator was not an element that would justify M. Cremades’ disqualification, finding that the Respondent had failed to bring any objective proof of any influence on M. Cremades’ independence in the exercise of his functions.
