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II. It is legally possible to remove Dr. Mercado from the present arbitration.

A. The fact that there is no expressed authority to remove counsel under the parties’ agreement, the Model Law or the CIETAC Rules, does not mean that there is no such opportunity as such.

25. In The Rompetrol Group NV v Romania (ICSID Case No ARB/06/3), an ICSID tribunal held that there is, in principle, a power to exclude parties' legal representatives from arbitral proceedings. (power would be exercised only rarely and in the most compelling situations), appealing to the decision in Hrvatska Elektroprivreda DD v The Republic of Slovenia (ICSID Case No ARB/05/24) (in which a barrister was excluded from an ICSID arbitration)

 

26. It should be noted that it seems to be that in our case it is rather challenging the arbitrator to be the alternative of challenging the legal representative than challenging a counsel instead of challenging an arbitrator hence, among other reasons, it is significantly easier to find a new representative for a party than to look for a new arbitrator.

  1. Indeed, the tribunal does not have an expressed authority to remove Dr. Mercado, as a council, from the arbitration. However, we believe that the Tribunal has the implied power to order interim measures in accordance with article 17 if the Model Law. [art.17, Model Law].

 

  1. Claimant says that the request to remove counsel is unprecedented but it appeals it to the precedents where such opportunity was found to be possible and unfounded.

 

  1. The Claimant appeals to the cases mentioned but interprets them in its own and, as far as we are concerned, wrong way.

 

  1. Claimant says the request is unfounded, but the body of evidences presented above proves it to be wrong hence there is a clear and evident bias between Professor Presiding Arbitrator and Dr. Elisabeth Mercado which gives rise to the justifiable doubts that the criteria of Professor’s impartiality are met in the present case.

 

III. The Claimant says that INSTEAD OF CIRCUMVENTING THE PROPER PROCEDURE BY CHALLENGING DR. MERCADO, RESPONDENT SHOULD HAVE CHALLENGED THE PRESIDING ARBITRATOR BEFORE THE CHAIRMAN OF CIETAC.

  1. In sum, in light of the precedents and international standards for arbitrators, particularly IBA Guidelines, the alleged relationship raises justifiable doubts as to an arbitrator’s impartiality hence the facts suggest the compelling circumstances necessary.

 

  1. Although we do not agree with Claimant that the removal of counsel is not an appropriate remedy or avenue to take the only choice we have is, indeed, to challenge Professor Presiding Arbitrator, if the Claimant refuses our request to challenge Dr.Mercado.

 

  1. The tribunal has the implied (?) authority to remove Dr. Mercado from CLAIMANT’s legal team. If Claimant does not accept our request to challenge Dr. Mercado, we are forced to challenge the Presiding Arbitrator.

 

  1. We agree with the Claimant’s statement that “the proper question is whether the presence of Dr. Mercado causes the Presiding Arbitrator to be partial and biased” – we believe it does.
  2. The Claimants says that “Impartiality generally means that the arbitrator is not biased because of any predetermined notions about the issues or any reason for him to favor one party over another one” [Moses, p. 130] – which is absolutely true concerning this issue: there are reasons for Professor Presiding Arbitrator to favor Elite since it is represented by Dr.Mercado

 



  1. We do absolutely agree that “when a party makes a challenge to an arbitrator based on a conflict of interest, such challenge must raise justifiable doubts as to the independence and impartiality of the arbitrator, thereby impairing the integrity of the arbitration process [IBA Guidelines, Part I (2); CIETAC Rules, Art. 26, para. 2; Model Law Art. 12; UNCITRAL Rules, Art. 10(1)]. Justifiable doubts are those which would persuade a reasonable and informed third party that the arbitrator might render his or her decision based on factors other than the merits of the case as presented by the parties [IBA, Part I(2)(c)].”
  1. We do agree that “the alleged circumstances must create “a concrete, not speculative impression of bias” to challenge an arbitrator’s independence [Positive, p. 286]”.

 

  1. However, we believe the body of circumstances clearly demonstrates such sort of bias and that is why we ask the tribunal to decide that Dr. Elisabeth Mercado shall terminate her role in the legal team representing Elite or, if the Claimant decides to challenge the Professor Presiding Arbitrator.

 

 


 

REQUEST FOR RELIEF

For the reasons stated above, RESPONDENT respectfully requests that the Tribunal find that:

(signed)


/s/Roman Ishmukhametov

/s/Ksenya Poplevina

/s/Mariam Islamova

/s/Yuri Ustinov

/s/Vlada Ovchinnikova

/s/Irina Maimust

/s/Marin Nikita


 


Date: 2016-01-14; view: 784


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I. THE NATURE OF THE RELATIONSHIP BETWEEN DR. MERCADO AND THE PRESIDING ARBITRATOR GIVES RISE TO A CONFLICT OF INTEREST AND NEEDS THE DISMISS FROM THIS ARBITRATION | VI. RESPONDENT SHOULD BE EXCUSED FROM LIABILITY UNDER THE ARTICLE 79 (2)
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