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This essay outlines a quandary facing international investment dispute settlement (IIDS): the tension between the wish to curb “dual hatting” and the wish to increase the diversity of those appointed as arbitrators in IIDS cases. Thoughtful observers are concerned by the effect on IIDS, either in fact or as a matter of appearance, of lawyers who wear “dual hats”—one as arbitrator in IIDS cases, and a second as counsel representing clients in other IIDS matters. Concurrently, other thoughtful observers are concerned that appointments to IIDS predominantly go to a small cadre of established arbitrators caricatured as “pale, male and stale.” This concern has prompted efforts to increase the pool of female and minority arbitrators. However, these individuals would be drawn primarily from the ranks of younger practicing lawyers who must continue to practice unless and until they receive sufficient appointments to make full-time service as arbitrators economically feasible.
This essay considers the ethical implications of arbitrator resignations. The resignation of an arbitrator “can severely disrupt an arbitration, particularly if it occurs at a late stage of the proceedings” and can cause “delays and significantly increased expense” resulting from replacement efforts, possible suspension of proceedings, and even the repetition of hearings. Given its potential impact on the parties and the arbitrator's own liability and reputation, “resigning from office is a serious decision, and should never be taken lightly.” Ethical issues connected with resignation have traditionally been given less prominence than discussion of conflicts and challenges, but should not be overlooked in any new endeavors aimed at developing a code of conduct for international arbitration.
Ethics plays a crucial role in international adjudication, in particular in the context of international criminal proceedings where the liberty of the accused is at stake. Criminal courts have been trying to create an “international judicial culture” based on shared ethical standards. In doing so, however, they are constantly faced with an obstacle inherent in the very idea of ethics: the impossibility of defining what constitutes “ethical conduct” divorced from one's culture, tradition, legal system, or professional background. This contribution intends to explore the complexity of trying to define the contours of ethical standards in international criminal proceedings, in particular in the absence of precise written rules, by focusing on the Furundžija case. Even when rules are codified, however, they often remain open to divergent interpretations depending on one's cultural, social, and legal background. Ultimately, it is not simply a matter of codifying ethical rules but, more importantly, of agreeing on “whose ethics” these rules should reflect.
Individuals appearing before the ICJ on behalf of states are not subject under international law to any compulsory code of conduct to guide them in navigating issues of professional ethics. Article 42(2) of the ICJ Statute merely provides that parties “may have the assistance of counsel or advocates before the Court” and does not impose qualification requirements on those a state elects to appear on its behalf. In practice, legal teams appearing before the Court are comprised of individuals from different legal backgrounds who are either qualified legal practitioners or academics (referred to below as “counsel”). Qualified practitioners will likely be subject to professional codes of conduct applicable to them in their home jurisdiction, and those codes of conduct may bind them in relation to proceedings before the ICJ. But the professional obligations applying to practitioners from different jurisdictions can vary considerably. Some may consider that their domestic code of conduct does not (and/or should not) bind counsel before an international court. Those who are academics or are not admitted in any jurisdiction may not be subject to any conduct rules when acting as counsel. The absence of a common set of professional obligations means that the obligations bearing upon the conduct of particular counsel are unclear and certainly not uniform. This may have an impact on the presentation of a case before the Court, and in turn on the Court's understanding of the dispute. Ultimately, it could materially impact the outcome of a case.
The issue of conflicts of interests has for a long time only been mentioned in passing in relation to recusals of international judges or arbitrators. It now attracts increasing attention, which has two facets. The first one is of normalcy: the exponential growth of international adjudication over the last three decades has turned issues that were previously rather marginal—with few rules, mostly self-regulation, and little institutionalization—into systemic issues. The other dimension is pathological: the feeling that the issue is not properly addressed contributes to the climate of mistrust around international adjudication. More generally, the topic of conflicts of interests turns out to be constantly torn between opposite poles, such as integrity versus quality. These dialectic tensions, which challenge the concept of what makes a good judge or arbitrator, pervade the perception of conflicts of interests as well as their identification and management. Conflicts of interests are an inherently ambiguous issue and exist in a gray zone. The complexity of this phenomenon requires both fine-tuned and rigorous regulation through the use of an array of tools and reforms.
In April 2019, member-states of UNCITRAL Working Group III requested the UNCITRAL Secretariat to undertake preparatory work for a Code of Conduct for Investor-State Dispute Settlement focusing on the implementation and enforceability of such a code. This groundbreaking development signals that, for the first time, a consensus exists that a code of ethics for Investor-State dispute settlement is desirable and needed. This contribution addresses three threshold questions that such preparatory work raises, namely: the preferred form of the code, the code's substantive reach, and the optimal process for bringing a code to fruition. As set out below, we urge that states adopt a mandatory common code of ethics for disputes involving states, and that arbitral institutions adopt this code as part of their rules for administering arbitration.