On May 1, 2020, International Centre for Settlement of Investment Disputes ("ICSID") and the United Nations Commission on International Trade Law ("UNCITRAL") published the first draft of Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS) ("Code" or "Code of Conduct"). The draft Code addresses certain policy issues in response to the criticism raised for adjudicators' conduct, independence and impartiality as well as their availability.
The draft Code of Conduct consists of 12 articles. Each article is coupled with a commentary which explains the reasoning behind these provisions in detail and even propose some wordings in square brackets.
Article 1 defines basic terms including adjudicators which means all arbitrators, members of international ad hoc, annulment or appeal committees, and judges on a permanent mechanism for the settlement of investor-state disputes. Article 2 determines the scope of application of the Code and sets out adjudicators' obligations and duties such as; independence, impartiality, conflict of interest, bias, integrity, fairness, competence, availability, diligence, efficiency, and confidentiality. Articles 4 to 9 discuss these duties and responsibilities in further detail and try to ease the concerns raised by arbitration society with regards to adjudicators' behaviors. Articles 10 and 11 burden the adjudicators with the duty to keep accurate and documented record of the time devoted to the procedure and their expenses. Finally, Article 12 addresses the inevitable issue of enforcement of the Code of Conduct.
The draft Code of Conduct provides innovative provisions and propose solutions to some of the long standing issues, adjudicators' disclosure obligations in particular, which will be discussed more thoroughly below.
Disclosure of Third-Party Funding (Article 5(2)(iv))
The Draft Code proposes a new rule on disclosing the existence of any third-party funder either on registration of the request for arbitration, or immediately upon the conclusion of a funding agreement. While the adjudicators are not obliged to disclose the terms and conditions of the funding agreement, the arbitrators may order disclosure of further information regarding the funding arrangement if it deems necessary at any stage of the proceeding.
Disclosure of Issue Conflict (Article 5(2)(d))
Issue conflict may become a concern if an adjudicator has taken a position on a legal matter relevant to the case, or has prior factual knowledge relevant to the dispute at hand. Even though the adjudicators are also expected to have expertise in a certain subject, academic writing or other public statements as well as past decisions may raise doubts about certain biases or prejudgment of certain issues. That being said, challenging arbitrators based on an alleged issue conflict remains rarely to be successful.
Pre-Appointment Interviews (Article 10(1))
The Code provides pre-appointment interviews for adjudicator candidates which ought to be limited to discussing availability, and potential conflicts of interest. Pre-appointment interviews should not be predicated upon jurisdictional, procedural or substantive matters that might be discussed during the proceedings.
Repeat Appointments (Article 5(2))
The draft Code does not provide for restrictions on repeat appointments but rather requires extensive disclosure. The concern in repeat appointments is that an adjudicator who is repeatedly appointed by the same counsel, client, or party develops a financial dependence, as well as a bias in favor of the appointing party. Repeat appointments do not only apply for arbitrators but also include experts, mediators, and conciliators. The draft Code determines a set of obligations for adjudicators to make all reasonable efforts to disclose (i) any significant relationship including professional and business relationships with the parties, their subsidiaries, their parent-companies or agencies, the parties' counsel, adjudicators, experts or third-party funders within the past five years, (ii) any direct or indirect financial interest in the proceeding or its outcome, (iii) all ISDS and any other international arbitration proceedings in which the adjudicator has been involved as counsel, arbitrator, annulment committee member, or expert, and (iv) a list of all publications and relevant public speeches by the adjudicator.
Double-Hatting (Article 6)
One of the key issues in the draft Code is the regulations on double-hatting. Double hatting refers to the two hats worn by the adjudicator who acts as both counsel and arbitrator. The commentary section of the draft Code mentions that even though an outright ban is easier to implement, it would exclude a greater number of people than necessary who would have valuable contributions to solving the dispute at hand with their expertise. The Article proposes disclosure and recusal as solution to double-hatting. The Code provides that the disclosure or recusal may be considered when the adjudicator participated in a prior proceeding involving (i) the same parties, (ii) the same facts, or (iii) the same treaty. The Code also imposes certain duties to the adjudicators such as, they should ensure their availability to hear the case before accepting any appointment and once appointed, they should refuse competing obligations. The draft also suggests the possibility of limiting the number of investor-state cases that an arbitrator can handle at once to ensure the adjudicators investing enough time to hear the dispute at hand.
Once the Code of Conduct is finalized, it could guide all of the relevant parties to the investment arbitration as "soft law," or could be incorporated into investment treaties, procedural rules or other instruments of consent and become binding. Either way it is an important and promising step towards a better functioning investment arbitration practice.
Originally published June 2020
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