Eiser v Spain – Unprecedented Annulment of an ICSID Award for Improper Constitution of the Tribunal

Abstract

The ad hoc Committee in Eiser Infrastructure Limited and Energía Solar Luxembourg SÀRL v Kingdom of Spain, annulled a unanimous ICSID award in its entirety, inter alia, on the ground that the tribunal was not properly constituted (Article 52(1)(a) of the ICSID Convention). The Committee found a ‘manifest appearance of bias’ with regard the claimant nominated arbitrator because the latter did not disclose his professional relationships with a Claimants’ expert, who testified before the Tribunal. The decision contains doctrinal findings which may reinforce and broaden arbitrators’ duty of disclosure. Nevertheless, the outcome of the decision – where proceedings, which began in 2013, at considerable expense to the parties, were annulled in full – seems unreasonable and inefficient. Moreover, some parts of the Committee‘s reasoning, as well as its decision to annul the award without giving the arbitrator an opportunity to refute the allegations raised against him, are questionable.