The Kluwer Arbitration Blog summarises why consensually circumventing the ICSID Convention procedure in Article 57 & Article 58 to disqualify an arbitrator by an external mechanism (through the Permanent Court of Arbitration in this case) is incorrect.
It is clear that the challenge to Judge Brower was not a proper one under the ICSID Convention. From an ICSID perspective, the decision of the PCA is a nullity. Indeed, the fact that Judge Brower had to resign voluntarily from his appointment as arbitrator after the PCA’s decision was rendered speaks volumes as to the validity of such proceedings. In fact, to the extent that Judge Brower had refused to resign, it is difficult to see how Ecuador would have had any remedy other than to start again and to propose his disqualification in accordance with Articles 57 and 58 of the Convention, which in turn would have provided a higher hurdle to overcome.
I do think there should be some reservation in the analysis adopted, especially the presumption of mandatory application of all provisions of the ICSID Convention ousting any scope for the consent of the parties in the conduct of the reference, which does seem to underlie parts of the analysis.
It is a fundamental principle of arbitration as a dispute resolution method that the parties are free to consensually add to the jurisdiction of the tribunal and it would be incongruous if the parties were not free to amend the procedure. After all, in a system driven by consent, it seems odd that consent could not vitiate procedural requirements which is where time and cost savings might be realised most clearly by the parties.
Even if their conduct did amount to a procedural failure that justified annulment, under the ICSID Convention the parties would be barred from making such a claim due to their prior agreement. A more tenable distinction would be that where that agreement requires compliance by third parties – such as the arbitral tribunal or the ICSID secretariat – they may refuse to implement an agreement which is contrary to the the mandatory rules of the ICSID Convention.