Back in December 2010, Mauritius initiated proceedings against the United Kingdom challenging the establishment of a Marine Protected Area (MPA) around the Chagos Archipelago as a violation of the 1982 United Nations Convention on the Law of the Sea. Mauritius is expected to argue that the United Kingdom had no right to establish an MPA because it does not have sovereignty over the archipelago. Yet, the establishment of the arbitral tribunal under Annex VII of the 1982 Convention has been delayed by a challenge raised by Mauritius against the arbitrator nominated by the United Kingdom, namely Judge Sir Christopher Greenwood. A decision rejecting the challenge was given by the tribunal back in October 2011, but the reasoned decision of the tribunal has just been posted on the website of the Permanent Court of Arbitration and it offers an interesting read. Challenges to individual arbitrators in inter-state arbitration are rare. Indeed, there have been no known cases where an arbitrator has been challenged in an arbitration brought under the 1982 United Nations Convention on the Law of the Sea. This decision is important as it provides a first attempt to clarify the rules and principles which apply in this situation.
Mauritius argued that Judge Greenwood’s long, close and continuing relationship with the Government of the United Kingdom was incompatible with the independence required of an arbitrator. Mauritius relied upon a wide range of sources in its arguments, including many documents which had been drawn up in the context of international commercial arbitration and mixed disputes between states and individuals. On the basis of these instruments, Mauritius advanced the argument that an arbitrator need not only avoid actual bias, but also an “appearance of bias.” Thus, they argued that Judge Greenwood should be recused from the case as a result of his long-standing and, in their view, on-going relationship with the United Kingdom Government. The United Kingdom strongly opposed the arguments of Mauritius, arguing that previous connections with a party did not provide sufficient grounds for a recusal in public international law. Rather, they suggested that the primary rule in such circumstances was that the arbitrator must not have had any involvement with the actual dispute that is before the arbitral tribunal.
The four members of the tribunal charged with deciding the challenge held that the law applicable to the appointment of arbitrators under the 1982 Convention requires that arbitrators should enjoy the highest reputation of “fairness competence and integrity” and that “there be no circumstances that might give rise to justifiable doubts as to the arbitrators’ impartiality or independence.” Such rules were based, in their opinion, on general principles of international law and practice of international courts and tribunals. In reaching this conclusion the tribunal particularly drew upon the practice of the International Court of Justice, and the Statute and the Rules of the International Tribunal for the Law of the Sea, as well as the relevant standards in the PCA Optional Rules for Arbitrating Disputes between Two States. However, the practices and procedures of other courts, tribunals or arbitral institutions, which had been relied upon by Mauritius, were not taken into account by the tribunal as they did not concern inter-state disputes. In this regard, the tribunal noted that:
“It cannot have been the intention behind [the framework for dispute settlement in Article 287(1) of the Convention] that different conditions would apply to the independence and impartiality of adjudicators in the third forum (arbitration under Annex VII) in comparison with the ICJ or ITLOS. In this context, where an Annex VII tribunal is an alternative forum to ITLOS or the ICJ, the Tribunal takes the view that only the rules applying to, and practice of, inter-State tribunals are of relevance to the qualification and challenge of arbitrators in proceedings under Annex VII.” (para. 168)
On this basis, the tribunal rejected the “Appearance of Bias Standard” which had been put forward by Mauritius but which was not reflected in the practice of the ICJ or the ITLOS. (para. 169) They held that the offering of advice to states in previous cases did not disqualify someone from acting as an arbitrator in an unrelated case and they therefore dismissed the challenge against Judge Greenwood.
One cannot really criticise the test applied by the tribunal – whether there are “justifiable grounds for doubting the independence and impartiality of that arbitrator in a particular case”, language taken from Article 10 of the PCA Optional Rules for Arbitrating Disputes between two States – or the result that they reach on the facts of the case. Judge Greenwood had no involvement in advising the United Kingdom government in relation to the case, nor to any other cases involving the Chagos archipelago. Indeed, he had not been involved in advising the United Kingdom for several years prior to the commencement of this dispute; he was involved in only one case in which he advised or represented the UK in the three years prior to his nomination as an arbitrator in this case. Nor could his involvement on the Board responsible for appointing the FCO legal adviser be considered to impinge on his impartiality given that he was chosen for this role precisely because he was independent. The fact that Judge Greenwood is a current Judge of the International Court of Justice further underlined his independence and impartiality.
However, some of the reasoning of the tribunal could be conceived as promoting an overly narrow interpretation of the “justifiable grounds” test. The tribunal makes very clear that it considers there to be no difference between the test applicable to the ICJ and the ITLOS on the one hand, and to Annex VII arbitration on the other hand. Yet, one must wonder about the logic of this analogy, simply because arbitrators are in a totally different position as they do not hold permanent office and they are not subject to general prohibitions on the types of work that they may undertake whilst they are in that office. Mauritius put forward several concerns about the strength of the analogy with the ICJ and ITLOS (reflected in para. 61 of the reasoned decision):
[T]he system of adjudication by a permanent court or tribunal, such as the ICJ or ITLOS, is fundamentally different from inter-State arbitration, including arbitral proceedings conducted pursuant to Annex VII, since in the former (i) the weight of the views of any particular judge is much more diluted given the higher number of judges, (ii) judges are elected by contrast to an arbitrator unilaterally selected by a State as its party-appointed arbitrator (iii) most cases will not involve adjudication of a judge’s home or nominating state.
These are all important points which were not given satisfactory attention by the tribunal in its haste to place all of the inter-state judicial bodies under a single umbrella. Are there really good reasons which support the application of identical grounds of disqualification to the adjudicative bodies listed in Article 297 of the 1982 Convention despite their obvious differences? Surely one can imagine that a different set of standards may be needed when it comes to an ad hoc institution such as an Annex VII arbitral tribunal simply because the appointment process and tenure of tribunal members are very different to the appointment processes and tenure of a judge on a permanent court or tribunal such as the ICJ or the ITLOS.
The tribunal should have addressed Mauritius arguments on differences between an ad hoc tribunal and a permanent adjudicative body for inter-State disputes. Assuming that in the present case the “apperent” bias may stick to the Judge concerned, yet it is imperative for the Tribunal addressed the arguments.