On 16 March 2018, two members of the arbitral tribunal in the Mathias Kruck and others v. Kingdom of Spain case issued their decision on the Spain’s proposal to disqualify its Member.
Spain challenged one arbitrator of the arbitral tribunal on the basis of Article 57 of the ICSID Convention, as well as Rule 9 of the ICSID Arbitration Rules. As alleged by Respondent, the arbitrator’s dissenting opinion in another case concerning EU regulation, namely in the Mr Jürgen Wirtgen and others v Czech Republic case, testified its partiality. It also claimed that the arbitrator undertook a ‘biased examination’ of council and witnesses in two other cases against Spain, because he looked for obtaining answers to reaffirm the position he had reached. In its turn, the challenged arbitrator furnished explanations regarding the challenge.
Two members of the arbitral tribunals reject the request to disqualify the arbitrator. They recall that under the ICSID proceedings, only standards embodied in the ICSID Convention are relevant. In particular, they have to apply the objective standard to consider the issue of the alleged failure of the arbitrator’s impartiality. These members stress then that subject beliefs fall outside such a standard. Regarding the grounds to disqualify the arbitrator, first, two members conclude that the dissenting opinion is aimed at a specific situation in the Czech Republic and is based on the facts of the Wirtgen case. Second, they analyze the transcript of questioning of counsel and witnesses in the two other cases. In their opinion, the arbitrator had the intention to clarify many issues and thus, they reject this argument too.