On 25 May 2012, Saint-Gobain Performance Plastics Europe filed a request for arbitration against the Bolivarian Republic of Venezuela for breaches to the Agreement on Encouragement and Reciprocal Protection of Investments between France and Venezuela of 15 April 2004.
After appointment of the arbitrators by each party, Claimant filed for the disqualification of the arbitrator chosen by Respondent, Mr. Bottini. Claimant relied on Articles 57 and 58 of the ICSID Convention and Rule 9 of the ICSID Arbitration Rules.
In rejecting his disqualification, the Arbitral Tribunal first recalled that in order for a challenge for disqualification to be upheld, the challenge must be based on facts indicating a manifest lack of independence.
In the case at hand, Mr. Bottini previously worked at the Office of the Attorney General of Argentina as the National Director of International Matters and Disputes, after which, on January 1, 2013, he started a doctorate in Cambridge in the United Kingdom. Claimant argued that Mr. Bottini had been involved in multiple cases as counsel for the Respondent State and that his change of employment did not change the fact that there was an apparent bias that should lead to his disqualification.
The Arbitral Tribunal, however, ruled that there was no violation of the ICJ Statute as his current academic position did not qualify as a political appointment and thus ruled out any incompatibilities.
In addition, the Arbitral Tribunal found no “manifest” risk of lack of independence justifying Mr. Bottini’s disqualification as an arbitrator. The Tribunal found that there was no evidence of a “reasonable doubt” concerning Mr. Bottini’s impartiality. The Arbitral Tribunal explained that it is assumed that Mr. Bottini would behave professionally in the absence of contrary evidence, with respect to any cases he may have been involved in the past, and that there was no evidence that he was then involved as counsel in any cases where Respondent was a party.
Mr. Bottini went on to rule in the Claimant’s favor on liability, in a decision of 30 December 2016.
