ARGENTINA elige la sede de LCIA en Londres para tratar la recusación de un árbitro porque allí la decisión debe ser motivada en forma expresa.

The Government of Argentina and a UK-based energy firm, National Grid, have asked the London Court of International Arbitration (LCIA) to rule on a bid by Argentina to challenge a member of a three-person tribunal presiding over an arbitration between the two parties.
As earlier reported in ITN, Argentina moved in late July to challenge arbitrator Judd Kessler, on the basis of comments he made at a July hearing on the merits; Argentina contends that those comments prejudged certain matters in dispute, thus raising concerns as to Mr. Kessler’s impartiality and independence to preside over the case.*
Mr. Kessler, who had been appointed to the tribunal to replace Whitney Debevoise – who had resigned from the tribunal in order to accept a political appointment from the US Government -, declined to step down in the face of Argentina’s challenge. He is understood to reject the contention that he lacks the requisite impartiality to preside over the dispute.
The arbitration is being conducted under ad-hoc auspices, using the UNCITRAL rules of procedure. Recently, Argentina and National Grid agreed to submit the challenge to the LCIA for a ruling – a move which will ensure that the two parties will be informed of the reasons underlying any ruling on the challenge to Mr. Kessler.
The London body has a policy of providing reasons when it makes rulings on challenges to arbitrators. By contrast, other arbitration institutions do not provide such reasons – which has been a particular sore point for Argentina.
As reported earlier in ITN, Argentine officials have expressed frustration that certain venues do not provide any explanation for decisions to disqualify (or uphold the appointment of) arbitrators.
Indeed, Argentina had earlier sought to challenge another member of the tribunal in the National Grid case. The International Chamber of Commerce made a ruling on that challenge: rejecting it in January of 2006. However, the Argentine Government then turned to the Argentine courts, in a (thus far unresolved) effort to have the ICC ruling invalidated on the grounds that it was accompanied by no explanation or reasoning for the decision to reject the challenge.
Notably, the arbitration proceedings in the National Grid v. Argentina dispute resumed after the ICC ruling in question, notwithstanding Argentina’s bid to have the Argentine courts weigh in on the subject.
ITN understands that the arbitration proceedings remain ongoing while the LCIA deals with Argentina’s challenge to Mr. Kessler.
Sources:

  • See “Tribunal rejects demand by Argentine court to suspend ongoing arbitration”, By Fernando Cabrera and Luke Eric Peterson, July 31, 2007, available on-line at:

http://www.iisd.org/pdf/2007/itn_july31_2007.pdf

Fecha del Documento: 24/1/2008

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