ICS Inspection & Control Services Ltd (U.K.) v. Republic of Argentina

ICS Inspection Control Services Ltd (ICS) (plaintiff) initiated arbitration against the governments of the United Kingdom (UK) and of Argentina (defendants). The arbitration tribunal conducted the arbitration pursuant to the 1976 United Nations Commission on International Trade Law (UNCITRAL) Rules. ICS appointed an arbitrator. The arbitrator disclosed that his law firm had represented PWC Logistics, “an affiliate or parent of ICS.” The ICS arbitrator also disclosed he personally and currently represented a party adverse to the Argentinian government in an International Centre for Settlement of Investment Disputes (ICSID) case that was still pending before the relevant tribunal. The government of Argentina objected to the ICS arbitrator under Article 10(1) of the 1976 UNCITRAL Rules. The government of Argentina also asked the Secretary-General of the Permanent Court of Arbitration to designate an appointing authority to decide the issue. The Secretary-General of the Permanent Court of Arbitration appointed Mr. Sekolec as appointing authority. Mr. Sekolec rendered a decision after receiving the submissions from the parties on the ICS arbitrator. In its submission, the government of Argentina referenced the “Orange List” of the 2004 International Bar Association (IBA) Rules. This section of the IBA Rules provided that an arbitrator’s law firm’s litigation against an opposing party in the arbitration can give rise to justifiable doubts as to the arbitrator’s impartiality or independence, particularly if the law firm worked on such a case within the last three years. ICS countered that the law firm could conclude its involvement in the case and that the case in question was unrelated to the present arbitration.