No due process failing in how earlier challenge was adjudicated

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Argentina wants committee to examine issues for itself, and to go beyond the Vivendi II committee’s harsh criticism – but reluctance to annul

Committee scrutinizes reasoning of Kaufmann-Kohler’s co-arbitrators

Decision reached in EDFI case on challenge was clearly something that a reasonable decision-maker could reach, as another set of arbitrators had reached much the same conclusion in a third case (Suez II)

Kaufmann-Kohler’s ties to UBS bank – and its ties to EDF – were central issue

Argentina cites Vivendi II analysis of Kaufmann-Kohler’s UBS ties in context of that case, but EDFI committee sees reasons to distinguish those facts

Committee doesn’t follow Vivendi II committee in pronouncing inherent tension between bank directorship and arbitral duties

Claimant-investors concede that prior DQ decision can be scrutinized, but only to see if it is so untenable as to not be one which a reasonable decision-maker could have reached

In a case where challenge was dismissed at first instance – committee role is to safeguard integrity of process by ensuring that earlier decision was one that a reasonable decision-maker could have made

No need to prove material effect on award; simply need to show that facts could have had such an effect

Committee first clarifies its powers in relation to such a challenge

Committee rejects Azurix annulment committee’s narrow view of the role of committees with respect to scrutinizing arbitrator independence/impartiality

Even if Remon’s law firm had been advising Repsol before he signed EDFI award in mid-May 2012, the committee accepted that the award was already finalized by mid-April when the Repsol-Argentina dispute emerged

While other cases have involved an arbitrator’s law firm, they typically saw such firms already engaged in offering advice – whereas here there was no proof that Remon’s law firm was doing so in the critical period when he could still have influenced award

No evidence to support Argentina’s speculation that Remon’s law firm may have been providing advice to Repsol even earlier, when the EDFI tribunal was still finalizing its own award

In approaching Argentina’s case against Mr. Remon de novo, the committee first gives its view of the standard applicable to arbitrator ethics at ICSID

Simply because an award is unanimous does not automatically mean that allegedly biased arbitrator could not have had material effect on award

Facts coming to light after closure of proceedings can be raised in annulment phase – rather than relegated to a revision process

Lifting of stay could result in serious hardship for Argentina

Committee rejects Argentine suggestion that it lacks power to impose conditions when continuing a stay

Competing interests – hardship for Argentina vs. risk of non-compliance – lead committee to seek undertaking from Gov’t

Committee cites several well-worn criteria to consider, including whether annulment bid appears manifestly baseless

Stays should not be viewed as automatic – or presumed to be short-lived

Committee sees serious risk of non-compliance with award in case it is not annulled

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