Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

Table of Contents

I. PROCEDURAL HISTORY

II. POSITIONS OF THE PARTIES

A. Legal Standard

(1) The Claimant's Position
(2) The Respondent's Position

B. First ground: Following his removal from the ICC Tribunal, it is impossible for Prof. Dr. Sachs to maintain the required appearance of impartiality towards the Claimant and his counsel

(1) The Claimant's Position
(2) The Respondent's Position

C. Second ground: Prof. Dr. Sachs' refusal to engage with the concerns raised by the Claimant and subsequent decision to accept the Respondent's appointment of him in this arbitration shows a serious lack of judgment and created an obvious appearance of lack of impartiality

(1) The Claimant's Position
(2) The Respondent's Position

D. Third ground: Prof. Dr. Sachs prejudged a disputed issue between the parties and aligned himself with the Respondent's view (that ADC and the Claimant are the same parties) in his Disclosure Statement

(1) The Claimant's Position
(2) The Respondent's Position

III. ANALYSIS OF THE CHAIR OF THE ADMINISTRATIVE COUNCIL

A. Applicable Rules and Legal Standards for Disqualification under the ICSID Convention
B. First Ground
C. Second Ground
D. Third Ground

IV. DECISION

PROCEDURAL HISTORY

1. On July 29, 2020, Mr. Bob Meijer ("Claimant") filed a Request for Arbitration at the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") against Georgia ("Georgia" or "Respondent"), under the 1998 Netherlands-Georgia BIT.

The Claimant and the Respondent are collectively referred to as the "Parties." The Parties' representatives and their addresses are listed above on page (i).

2. Mr. Meijer is a shareholder in Anaklia Development Consortium LLC ("ADC"), a company incorporated under the law of Georgia. ADC and Georgia entered into an Investment Agreement relating to the building, operation and transfer of the Anaklia Deep Water Black Sea Port on October 3, 2016 (the "Investment Agreement").

3. In July 2020, ADC (without Mr. Meijer) commenced a separate arbitration against Georgia under the ICC arbitration clause in the Investment Agreement, ICC Case 26642/HBH (the "ICC Arbitration").

4. On August 11, 2020, the Secretary-General of ICSID registered the Request for Arbitration filed on July 29, 2020, in accordance with Article 36(3) of the ICSID Convention, and notified the Parties of the registration.

5. By letter dated September 10, 2020, the Respondent proposed to consolidate the present arbitration with the ICC Arbitration.

6. By letter dated October 14, 2020, the Claimant rejected the Respondent's proposal to consolidate the ICC Arbitration and the present ICSID arbitration.

7. By letter dated October 29, 2020, the Claimant informed ICSID that it opted for the formula provided in Article 37(2)(b) of the ICSID Convention. In accordance with that provision, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party, and a presiding arbitrator appointed by agreement of the parties. The Claimant further informed the Centre that it appointed Dr. Charles Poncet, a national of Switzerland, as an arbitrator.

8. By letter dated November 20, 2020, the Respondent informed the Centre that it appointed Prof. Dr. Klaus Sachs, a national of Germany, as an arbitrator.

9. By letter dated November 25, 2020, the Claimant expressed his concern with having Prof. Dr. Sachs sit on the Tribunal in both the ICC Arbitration and in the present case and asked ICSID to communicate his letter to Prof. Dr. Sachs as he considered the appointment.

10. By letter dated November 25, 2021, ICSID informed the Parties that Prof. Dr. Sachs had reviewed Mr. Meijer's letter of the same date and had accepted his appointment. In accepting his appointment, Prof. Dr. Sachs made the following disclosure: "For the sake of good order, I wish to disclose, although the fact is known to the parties, that the Claimant has appointed me as arbitrator in the parallel ICC proceeding (Case n° 25542/HBH) between the same parties."1

11. By letter dated November 30, 2020, the Claimant commented on Prof. Dr. Sachs' disclosure of November 25, 2020 and pointed out several errors therein.

12. On December 1, 2020, Prof. Dr. Sachs corrected and clarified his disclosure submitting that:

It was not the Claimant but the Respondent that appointed me as an arbitrator in the ICC Case No. 25542/HBH.
The parties to that ICC case are Anaklia Development Consortium LLC as the claimant and the Government of Georgia as the respondent.

13. On December 2, 2020, the Claimant sent a letter to ICSID requesting that Prof. Dr. Sachs respond to several questions arising from his disclosure and his subsequent corrections/clarifications. On December 4, 2020, the Respondent commented on the Claimant's letter of December 2, 2020.

14. On December 7, 2020, Prof. Dr. Sachs responded to the Claimant's letter and made the following additional disclosure:

In 2016, I was appointed by the Respondent, represented by White & Case LLP, in ICC Case n° 20965/MHM. Neither Georgia nor a Georgian state-owned entity was a party to that arbitration. The case was terminated by a final award rendered in June 2020.

15. On December 21, 2020 ADC, the claimant in the ICC Arbitration, challenged Prof. Dr Klaus Sachs in the ICC Arbitration.

16. Also on December 21, 2020, Bob Meijer filed a proposal for the disqualification of Prof.

Dr. Sachs on the basis that he manifestly lacks the qualities required by Article 14(1) of the ICSID Convention ("Claimant's Proposal to Disqualify Klaus Sachs"). The Claimant invoked the following grounds:

a. Prof. Dr. Sachs accepted concurrent appointments in the present arbitration and the ICC Arbitration;

b. Prof. Dr. Sachs' was repeatedly appointed by the Respondent and/or White & Case LLP, namely in the ICC Arbitration, this arbitration and ICC Case No. 20965/MHM;3 and

c. The contents of Prof. Dr. Sachs' disclosure statement contain three obvious and substantial errors which revealed that he has already prejudged the factual dispute

...

IV. DECISION

98. Having considered all the facts alleged and the arguments submitted by the Parties, and for the reasons stated above, the Chair rejects the Claimant's Proposal to Disqualify Prof. Dr.

Klaus Sachs.

Footnotes omitted