^* This text was reproduced and reformatted from the text available at the Investment Treaty Arbitration website: (visited January 7, 2010) http://ita.law.uvic.ca/documents/Gallo-Canada-Thomas_Challenge-Decision.pdf.

¹ Vito G. Gallo v. Government of Canada, Decision on the Challenge to Mr. J. Christopher Thomas, QC (NAFTA Ch. 11 Arb. Trib. Oct. 14, 2009), available at http://arbitration.fr/resources/Vito.Gallo.v.Canada.Arbitrator.Challenge.pdf [hereinafter Challenge Decision].

² North American Free Trade Agreement, Dec. 8, 1993, Can.-Mx.-U.S.,107 Stat. 2057, 32 I.L.M. 289 (1993) [hereinafter NAFTA].

³ Thomas later agreed to resign as arbitrator. Letter from J. Christopher Thomas, QC, to ICSID Deputy Secretary-General Nassib Ziadé (Oct. 21, 2009), available at http://www.naftaclaims.com/Disputes/Canada/Gallo/Gallo-Canada-Thomas_Challenge-Resignation.pdf (reporting resignation).

⁴ Challenge Decision, supra note 1, ¶ 31

⁵ See Damon Vis-Dunbar & Luke Eric Peterson, Belgian Appeals Court Rejects Poland’s Challenge to Arbitrator in Eureko Case, Inv. Treaty News, Nov. 15, 2007 (discussing unsuccessful bid to remove an arbitrator based on an alleged lack of impartiality arising from his business relationship with a law firm that represented a claimant in a different, unrelated case against the same respondent state); Luke Erik Peterson, ICSID Rejects Challenge to Lead Arbitrator in Siemens Case; Argentina Rips Decision, INVEST-SD: Inv. L. & Pol. News Bull., Apr. 27, 2005 (discussing unsuccessful challenges to the presiding arbitrator in two cases on grounds that the lawyer acting for the claimants in both cases had been appointed by the presiding arbitrator’s law firm to serve as an arbitrator in a case that was unrelated but that raised similar issues); Judith Levine, Dealing with Arbitrator ‘‘Issue Conflicts’’ in International Arbitration, Dispute Res. J., Feb.-Apr. 2006, at 61, 62 (highlighting the increasing problem of issue conflicts in investment arbitration, where the same arbitrators often are called upon to interpret similar or identical treaty provisions).

⁶ Challenge Decision, supra note 1, ¶ 29.

⁷ Id. ¶ 30.

⁸ NAFTA, supra note 2, art. 1120(2) (‘‘The applicable arbitration rules shall govern the arbitration except to the extent modified by this Section’’).

⁹ Canada has signed the ICSID Convention and is in the process of bringing it into force. See Press Release, Foreign Affairs and International Trade Canada, Canada Passes Legislation to Implement the International Convention on Investment Dispute Resolution (Mar. 14, 2008), available at http://www.international.gc.ca/media/aff/news-communiques/2008/385943.aspx?lang=en.

¹⁰ Challenge Decision, supra note 1, ¶ 19 (quoting Challenge Decision of Jan. 11, 1995, 22 Y.B. Com. Arb. 227, 234 (1997)).

¹¹ Convention on the International Settlement of Investment Disputes Between States and Nationals of Other States art. 58, Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 (1985) (‘‘The decision on any proposal to disqualify a conciliator or arbitrator shall be taken by the other members of the Commission or Tribunal as the case may be, provided that where those members are equally divided, or in the case of a proposal to disqualify a sole conciliator or arbitrator, or a majority of the conciliators or arbitrators, the Chairman [of the ICSID Administrative Council] shall take that decision . . . .’’) [hereinafter ICSID Convention]; ICSID Arbitration (Additional Facility) Rules art. 15(5) (amended Apr. 10, 2006), available at http://icsid.worldbank.org/ICSID/StaticFiles/facility/AFR_English-final.pdf (same standard) [hereinafter ICSID Additional Facility Rules].

¹² ICSID Convention arts. 57 (emphasis added), 14(1); ICSID Additional Facility Rules arts. 8, 15(1) (same standard). See also In the Proceedings Between Suez, Sociedad General de Aguas de Barcelona S.A. & Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, and Suez, Sociedad General de Aguas de Barcelona S.A.; InterAguas Servicios Integrales del Agua .S.A. v. Argentine Republic, ICSID Case No. ARB/03/17, and AWG Group Limited v. Argentine Republic (UNCITRAL), Decision on a Second Proposal for the Disqualification of a Member of the Arbitral Tribunal ¶ 17 (May 12, 2008), available at http://ita.law.uvic.ca/documents/Suez-VivendiChallenge2.pdf (‘‘It is important to emphasize that the language of Article 57 [of the ICSID Convention] places a heavy burden of proof on the Respondent to establish facts that make it obvious and highly probable, not just possible, that [the arbitrator challenged] is a person who may not be relied upon to exercise independent and impartial judgment’’).

¹³ ICSID Convention, Regulations and Rules, R. 9 (amended Apr. 10, 2006), available at http://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf [hereinafter ICSID Arbitration Rules]; Additional Facility Rules, supra note 11, art. 15(2). In Gallo, ICSID determined that the respondent had failed to carry its burden of proving that the claimant knew of the complained-of circumstances more than 15 days prior to bringing its challenge, and thus the decision on the limitations period likely would have been the same under ICSID’s as-soon-as reasonably-possible standard. See Cemex Caracas Investments B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. Arb. 08/15, Decision on the Respondent’s Proposal to Disqualify a Member of the Tribunal ¶¶ 37, 44 (Oct. 26, 2009), available at http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=viewCase&reqFrom=Home&caseId=C420 (rejecting as untimely an application to disqualify an arbitrator made six months after learning of the putative grounds for the challenge, and citing cases holding that delays of fifty-three days, 147 days, and eight months were too long, while a delay of ten days was sufficiently ‘‘prompt,’’ within the meaning of ICSID Arbitration Rule 9(1)).

¹⁴ See Leng Sun Chan, Arbitrators’ Conflicts of Interest: Bias by any Name, 19 Sing. Acad. L. J. 245, 258 (2007) (canvassing arbitration laws and rules). In 2006, ICSID Administrative Counsel amended the ICSID Arbitration Rules to expand the disclosure requirement to include ‘‘a continuing obligation’’ to the notify ICSID of ‘‘past and present professional, business and other relationships (if any) with the parties’’ and ‘‘any other circumstances that might cause [the arbitrator’s] reliability for independent judgment to be questioned by a party.’’ ICSID Arbitration Rules, supra note 13, R. 6(2); ICSID Additional Facility Rules, supra note 11, art. 13(2) (same requirement).

¹⁵ Challenge Decision, supra note 1, ¶ 8.

¹⁶ International Bar Association Guidelines on Conflicts of Interest in International Arbitration (May 22, 2004), available at http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx.

¹⁷ Challenge Decision, supra note 1, ¶ 16.