Disqualification and Removal of Arbitrators – Additional Facility Arbitration (2022 Rules)

Either party may propose the disqualification of a Tribunal member once the Tribunal has been constituted (Additional Facility Arbitration Rule 30).  A party may also propose that a Tribunal member be removed for incapacity or failure to perform the required duties (Additional Facility Arbitration Rule 32).

A proposal to disqualify (or otherwise remove) an arbitrator must be made within 21 days after the later of the constitution of the Tribunal or the date on which the filing party first knew or should have known of the facts on which the proposal is based (Additional Facility Arbitration Rule 30(2)(a)). Failure to observe this deadline will result in the rejection of the proposal. 

Grounds for Disqualification

An arbitrator may be disqualified on the grounds that the arbitrator was ineligible for appointment to the Tribunal under Additional Facility Arbitration Rule 21(2)(a)-(c), or on account of existing circumstances that give rise to justifiable doubts as to the qualities of the arbitrator required by Additional Facility Arbitration Rule 22.

Additional Facility Arbitration Rule 21(2)(a)-(c) address the constitution of the Tribunal and contain certain nationality requirements.

Additional Facility Arbitration Rule 22 specifies the qualities required of arbitrators.  They must possess high moral character, recognized competence in the fields of law, commerce, industry or finance, and be impartial and independent.

The most frequently proposed ground for disqualification of a member of a Tribunal is lack of independence and impartiality.

The applicable legal standard for disqualification is an objective one, based on how a reasonable third party would evaluate the evidence. The subjective belief of the party proposing the disqualification does not satisfy the legal standard under the Additional Facility.  While the IBA Guidelines on Conflicts of Interest are not binding, they may serve as useful references in a challenge under the Additional Facility.  

Other Grounds for the Removal of an Arbitrator

An arbitrator may also be removed for incapacity or failure to perform the duties required of an arbitrator (Additional Facility Arbitration Rule 32). 

Procedure

The procedure applicable to a disqualification proposal also applies to the removal of an arbitrator who becomes incapacitated or fails to perform the required duties (Additional Facility Arbitration Rule 30).

The procedure starts with the submission by a party of a proposal regarding the member(s) of the Tribunal proposed for disqualification. The filing of a proposal suspends the proceeding, except to the extent that the parties agree to continue it (Additional Facility Arbitration Rule 30(4)). 

The filing party must submit the proposal within 21 days after the later of the constitution of the Tribunal or the date upon which the filing party first knew or should have known of the facts on which the proposal is based. The other party must file a response within 21 days of receipt of the proposal.  Any statement by the arbitrator to whom the proposal relates must be filed within five days after the earlier of receipt of the response or expiry of its time limit. The parties may file final simultaneous comments after the earlier of receipt of the arbitrator’s statement or expiry of its time limit (Additional Facility Arbitration Rule 30(2)).

Decision

The Secretary-General will make the decision on the proposal (Additional Facility Arbitration Rule 33(1)). Additional Facility Arbitration Rule 33(2) contains a best-efforts obligation to issue a decision within 30 days.

Resumption of the Proceeding

The decision will either reject or uphold the proposal.  If the proposal is rejected, the proceeding will resume immediately with the same Tribunal.

A proposal that is upheld results in a vacancy on the Tribunal.  A vacancy is filled using the same method by which the arbitrator had been appointed, except that the appointment will be made by the Secretary-General when the vacancy has not been filled 45 days after its notification (Additional Facility Arbitration Rule 34(3)).

As soon as the vacancy has been filled, the proceeding will resume (Additional Facility Arbitration Rule 34(4)).

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