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Criticsm (‘A struggle between the strong and the weak?’ (a. Investors from…

- - - - Greenwood says both are wrong (that strictly echr or national issues should bear the burden).
        
        The qn if prisoners have the right to vote is the issue of minority rights/ but when imprisoned, u r a vulnerable group of democracy.
        
        The idea is the same in investor state arbi. On one hand, powerful apparatus of the state. In any of those countries, administrativea apparatus is a powerful thing (in venezuela). Or if ukranian investor in russia, discriminated against because foreign.
        Inv state arbi: foreigner (if) goes to domestic courts, it is thinkable dom cts will side w government and not the foreigner. Important to lift dispute out of dom cts and into international plane where there is an objective tribunal that decides the case.
      - G is of the view that:
        (1) these are qns that should be decided democratically
        (2) prisoners can easily find themselves discriminated against.
- - - - A party challenging an arbitrator had to demonstrate and prove that there were justifiable grounds for doubting the independence and impartiality of the arbitrator. Judge Greenwood’s previous record as counsel for the United Kingdom was not such as to give rise to justifiable doubts as to his independence or impartiality. He had not been involved in any way with the present dispute before his appointment as an arbitrator. The practice of the International Court of Justice was that a Judge could not take part in proceedings if he had been involved, prior to his appointment, in the dispute the Court was now called upon to decide but that the fact that he had represented one of the parties in other matters did not preclude him from participating (Chagos Island (Mauritius v UK) Decision on Challenge to an Arbitrator (2011) 162 ILR 1, paras. 141–7 and 171–4). Judge Greenwood’s participation in the Board which selected a new Foreign and Commonwealth Office Legal Adviser was not part of a continuing relationship and was of very short duration. It did not involve advice on legal issues and did not give rise to justifiable doubts about his impartiality and independence concerning the case to be decided by the Tribunal (Chagos Island Decision, paras. 175–83)
      - Is there a problem w having a class of people (successful french lawyers and british QCs barristers canadian aus) who have a monopoly on the diff roads in intl arbi. The same people sit as arbitrators in other cases. These people do both roles and change from day to day. How can this be avoided?
      - Chagos island between mauritius and uk. 5 arbis in the case. The uk elected as its arbitrator in its case (Greenwood). Mauritius said they don’t accept greenwood. 1. greenwood appeared as council for uk in the past, and was instructed by the uk for a few cts and a few icj cts. Does this disqualify him as arbitrator.
        
        (1) 2 diff jobs
        (2) better equipped - especially bc chagos islands arbitration is someone familiar… has expetise in the matter
        
        IS GREENWOOD TOO CLOSE TO ONE OF THE PARTIES? Not by reason of nationality. But because (1) he acted as council before and (2) tasked by FCO to choose the principle legal advisorof chagos foreign office. Sir Ian was representing in the mauritius case as well
        
        Tribunal said there needed to be justifiable grounds of doubting independence and impartialty and none of this was enough to meet that test.** Is a very high bar.
        - Problametic: intl arbitratin should be a third party, an objective tribunal that decides the case on what the law is. Flies in the face of international objectivity. **