¹ As of May 12, 2014, the caseload has continued to increase (http://www.pca-cpa.org).

² Yves Derains & Eric A. Schwartz, A Guide to the ICC Rules of Arbitration 185 (1998).

³ The equivalent provision in the PCA 2012 Rules expands this period to 30 days (acknowledging that states sometimes require longer to check conflicts and consider disclosures).

⁴ Suez v. Argentine Republic, ICSID Case No. ARB/03/17; Suez & Vivendi v. Argentine Republic, ICSID Case No. ARB/03/19; AWG Group v. Argentine Republic (UNCITRAL) [hereinafter Suez and AWG Group], Decision on the Proposal for the Disqualification of a Member of the Arbitral Tribunal, para. 13 (Oct. 22, 2007), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC689_En&caseId=C18.

⁵ Id. paras. 21, 26. The co-arbitrators addressed the merits of the challenge anyway.

⁶ Abaclat v. Argentine Republic, ICSID Case No. ARB/07/5, Recommendation on Proposal for Disqualification Decision on Proposal to Disqualify Majority of Tribunal, para. 63 (Dec. 19, 2011), http://www.italaw.com/sites/default/files/case-documents/ita0240.pdf.

⁷ Abaclat, Decision on Proposalto Disqualify Majority of Tribunal, para.80 (Feb.4,2014), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC4152_En&caseId=C95. See also Suez and AWG Group, paras. 35–36; ConocoPhillips Co. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on Proposal to Disqualify Majority of Tribunal, paras. 53–56 (May 5, 2014), http://www.italaw.com/sites/default/files/case-documents/italaw3162.pdf.pdf. But see Caratube v. Republic of Kazakhstan, ICSID Case No. ARB/13/13, Proposal for Disqualification of Arbitrator Bruno Boesch, paras. 88–91 (Mar. 20, 2014), http://www.italaw.com/sites/default/files/case-documents/italaw3133.pdf (overlapping facts, witnesses, and legal issues with prior case).

⁸ Hrvatska Elektroprivreda v. Republic of Slovenia, ICSID Case No. ARB/OS/24, Order Concerning the Participation of a Counsel (May 6, 2008), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC950_En&caseId=C69; Filip De Ly, Mark Friedman & Luca Radicati Di Brozolo, Report for the Biennial Conference in Washington D.C. 2014 12 (Comm. on Int’l Commercial Arbitration, Int’l Law Ass’n), available at http://www.ila-hq.org/download.cfm/docid/C3C11769-36E2-4E93-8FDA357AA1-DABB2F.

⁹ Rompetrol Grp. v. Romania, ICSID Case No. ARB/06/3, Decision of the Tribunal on the Participation of a Counsel, para. 25 (Jan. 14, 2010), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC1370_En&caseId=C72.

¹⁰ Eureko v. Slovak Republic, PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension, para. 17 (Oct. 26, 2010), http://server.nijmedia.nl/pca-cpa.org/showfile.asp?fil_id=1661.

¹¹ Atlanto-Scandian Herring Arbitration (Den. in respect of the Faroe Islands v. EU), PCA Case No. 2013-30, Rules of Procedure, Art. 3.1 (Mar. 15, 2014), http://pca-cpa.org/showfile.asp?fil_id=2524.

¹² Prosecutor v. Šešelj, Case No. IT-03-67-T, Decision on Defence Motion for Disqualification of Judge Frederik Harhoff and Report to the Vice-President, para. 13 (Int’l Crim. Trib. for the Former Yugoslavia Aug. 28, 2013), http://www.icty.org/x/cases/seselj/tdec/en/130828.pdf:

By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority… considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias… in favour of conviction… This appearance of bias is further compounded by [the] statement that he is confronted by a professional and moral dilemma… a clear reference to his difficulty in applying the current jurisprudence of the Tribunal. In the circumstances, the Majority considers that the Letter, when read as a whole, rebuts the presumption of impartiality.

¹³ See, e.g., the placement of an “ethical screen” in Detroit International Bridge Company v. Canada (PCA Case No. 2012-25) “so as to shield that arbitrator from his law firm’s separate prosecution of an unrelated NAFTA arbitration against Canada.” Peterson, Luke Eric, Ethical Screen Erected in NAFTA Case to Ensure that Arbitrator Remains Cut Off from His Law Firm’s Prosecution of a Separate Claim, Inv. Arb. Rep., Mar. 18, 2014 Google Scholar, http://www.iareporter.com/articles/20140319.

¹⁴ Such as the Joint ASIL/ICCA taskforce on issue conflicts.

¹⁵ Derains & Schwartz, supra note 2, at 185.

¹⁶ Id. at 195.

¹⁷ Nigel Blackaby et al., Redfern And Hunter on International Arbitration 286 (5^th ed. 2009). Derains and Schwartz describe the dilemma as follows:

[A]n arbitrator may consider that, whatever the actual merits of the challenge, it would be in the best interests of the arbitration and of both parties ultimately for the arbitrator to be replaced, in order to permit the arbitration to proceed in a better climate of confidence and trust and to minimize the likelihood of recourse against the arbitral award when it is rendered. The decision of whether to stay or to go in such circumstances inevitably involves the consideration of a number of different factors that may be particular to the case in question… [T]here appears to be a relatively broad international consensus… that an arbitrator may legitimately choose to withdraw if challenged, even if the challenge is not considered to be founded, and withdrawal in such case need not constitute an admission of the validity of the challenge.

Derains & Schwartz, supra note 2, at 185. Finally, Article 13(3) of the UNCITRAL Rules acknowledges this reality, providing: “When an arbitrator has been challenged by a party, all parties may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his or her office. In neither case does this imply acceptance of the validity of the grounds for the challenge.”

¹⁸ See, e.g., Himpurna Cal. Energy Ltd. v. Rep. of Indon., Final Award of 16 October 1999, 15 YB Comm. Arb. 186 (2000).

¹⁹ ICSID Convention art. 56; Christoph H. Schreuer, The Icsid Convention: A Commentary 1192 (2d ed. 2009); ICC Rules art. 15(1).

²⁰ UNCITRAL Rules art. 14 (2010). The UNCITRAL Rules (2010) have been described as a major departure from the UNCITRAL Rules (1976) and as an improvement thereon. David D. Caron & Lee M. Caplan, The UNCITRAL Arbitration Rules: A Commentary 314–17 (2d ed. 2013). See also PCA Arbitration Rules art. 14(2); Brooks W. Daly, Evegeniya Goriatcheva & Hugh A. Meighen, A Guide to the PCA Arbitration RULES, paras. 4.62–4.65 (2014) (which uses a slightly different formulation).

²¹ See PCA Arbitration Rules art. 12(4) and UNCITRAL Rules (2010) art. 14(2). For a novel solution in a national arbitration law, see Mauritian International Arbitration Act 2008, Sections 15–16.

²² For example, with regard to arbitrations conducted in England, there are relevant provisions in the English Arbitration Act 1996 which subject such entitlements to the English courts. Arbitration Act, 1996, c.23, § 25 (Eng.). See also id. § 27 (provisions on filling of vacancies in the event of resignation).