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A Common Code of Conduct for Investment Arbitrators?

Published online by Cambridge University Press:  31 December 2019

Chiara Giorgetti
Chiara Giorgetti*
Affiliation:
University of Richmond School of Law.
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Extract

Investor-State Dispute Settlement (ISDS) is in the midst of an important reform process, and the call for reform includes ethics. Amongst others, criticisms related to ethics in ISDS include concerns related to the lack of diversity among arbitrators, the ensuing increasing possibility of personal, professional, and issue conflicts, the concern that actors can simultaneously wear multiple hats (so-called “double hatting”) as they can serve as counsel in one arbitration and as arbitrator or expert in another that deals with similar or connected issues, as well as, more generally, the lack of common ethical standards applicable to all participants in arbitral proceedings irrespective of their diverse legal cultures.

Type
Assessing Professional and Judicial Integrity in International Tribunals
Information
Proceedings of the ASIL Annual Meeting , Volume 113 , 2019 , pp. 217 - 219
Copyright
Copyright © 2019 by The American Society of International Law

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Footnotes

Issues addressed in this essay appeared in a more developed form in Chiara Giorgetti & Jeffrey L. Dunoff, Ex Pluribus Unum? On The Form and Shape of a Common Code of Ethics in International Litigation, 113 AJIL Unbound 312 (2019) as part of the AJIL Unbound Symposium, “A Focus on Ethics in International Courts and Tribunals” that was published in 113 AJIL Unbound and edited by Jeffrey L. Dunoff and Chiara Giorgetti.

References

1 Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Seventh Session, para. 84, UN Doc. A/CN.9/970 (Apr. 9, 2019). States requested that this work be undertaken in conjunction with the International Centre for Settlement of Investment Disputes (ICSID).

2 As we argue in Ex Pluribus Unum? (or, Why We Need a Common Code of Ethics in International Litigation).

3 See, for example, the Burgh House Principles on the Independence of the International Judiciary and the 2011 Resolution of the Institute de Droit International on the position of the international judge.

4 For an insightful treatment of these issues, see John R. Crook, Dual Hats and Arbitrator Diversity: Goals in Tension, 113 AJIL Unbound 284 (2019); Hélène Ruiz Fabri, Conflicts of Interest: Navigating in the Fog, 113 AJIL Unbound 307 (2019).

5 UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, available at http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf.

6 Note that so far the Mauritius Convention has only entered into force in five countries. UN Convention on Transparency in Treaty-Based Investor-State Arbitration, at http://www.uncitral.org/uncitral/uncitral_texts/arbitration/2014Transparency_Convention.html.

7 Along those lines, Article 1(9) of the Rules on Transparency provides for the applicability of the Rules to investor-state arbitration initiated under rules other than UNCITRAL Arbitration Rules in ad hoc proceedings, and UNCITRAL Arbitration Rules have also been amended in 2013 so as to incorporate the new Rules.