Annulment decision conclusion4 Jun 2025 12:48
CONCLUSIONS
411. When Rockhopper asked Dr. Poncet whether he wished to be appointed to arbitrate its claims against Italy, Dr. Poncet had the option of simply declining. Dr. Poncet also had the option of accepting the appointment and making a disclosure including the fact that there had been criminal proceedings against him in Italy. In the view of this Committee, it was not an option for Dr. Poncet to exclude the criminal proceedings from his disclosure but to continue with the appointment anyway, but that is what Dr. Poncet did.
412. Dr. Poncet failed to abide by the required standard when he excluded from his disclosure facts sufficient to make the Parties aware that he had been prosecuted in Italy for work as a lawyer in connection with the failure of Banco Ambrosiano. By excluding that important information from his disclosure, Dr. Poncet frustrated the reasonable expectations of parties to an ICSID arbitration and deprived the Italian Republic of its procedural rights.
413. Although Dr. Poncet has no criminal record in Italy and more than 20 years have passed, he was criminally prosecuted and convicted in the host State for his work as a lawyer in connection with a notorious matter having national consequence. The annulment of his convictions by application of a statute of limitations was a result that fell short of what Dr. Poncet had reportedly vowed to the press he would fight to the end to achieve.
414. Taking into account not only the Italian criminal charges but also the circumstances of the long criminal proceedings, the statements about them that Dr. Poncet made contemporaneously and his recent explanations, as well as other relevant facts, the Committee’s conclusion is that an objective observer may have reasonable concerns that Dr. Poncet’s experience with the Italian justice system has affected him in a way bearing upon his exercise of independent judgment involving Italy. For this reason, as well as Dr. Poncet’s decision to exclude the criminal proceedings from his disclosure, the Tribunal was not properly constituted with Dr. Poncet as a member.
415. The ground for annulment stated in Article 52(1)(a) has been established. The arbitral proceedings as a whole are affected when, as in this case, there has been a serious defect in the constitution of the tribunal. Taint of the award inescapably results. Annulment is warranted for these reasons, and no exceptional circumstance militating against that result has been presented in this proceeding.
416. Having decided that the Tribunal was not properly constituted and that annulment on the ground of Article 52(1)(a) is warranted, the Committee will not consider other grounds for annulment that the Italian Republic has advanced. The Committee does not wish to add to the costs of these proceedings when doing so could have no effect on the disposition of the Request for Annulment. Discussion of matters that may arise in the event of further arbitral proceedings between Rockh
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