Double hatting and insufficient disclosure by the arbitrators have been problematic features of investment arbitration. Double hatting is generally regarded as an individual simultaneously playing the role of counsel and arbitrator in similar matters. The real issue is whether these concerns have the potential to affect the arbitrator’s ability to form “independent judgment,” as described…
As the pool of international arbitrators has grown, and continues to grow, acting as an arbitrator is now seen more as a career path as opposed to a retirement plan. In fact, we can now confidently say that a profession of arbitrators exists. With this, the identity of a typical arbitrator has significantly changed, and the…
In the forest of reform deliberations at the UNCITRAL Working Group III (ISDS Reform), the development of a draft Code of Conduct for decision-makers in investment disputes (Draft Code) was considered a low-hanging fruit. WGIII delegates and commentators frequently used this metaphor to reflect on the consensus among the key stakeholders that the Code should…
With 17 minutes to spare before the end of the 45th Session, the chair of UNCITRAL Working Group III (WGIII), Mr Spelliscy, announced that a workable compromise had been reached on the last remaining outstanding issue (how to regulate double hatting) and that, therefore, an agreement was reached on a text of the Code of…
The 2022 New York Arbitration Week opened on 14 November 2022 with the Joint Colloquium co-organized by AAA-ICDR, ICC, and ICSID. The Colloquium tipped its hat to the Week’s overarching theme “who is in charge?” That is, why and how the objectives and expectations of various parties involved in international arbitration — such as clients,…
In 2017, the United Nations Commission on International Trade Law (UNCITRAL) initiated a consultative process to consider procedural reform options for investor-State dispute settlement (ISDS). Kluwer Arbitration Blog ran a series on UNCITRAL’s reform work in 2020, highlighting several subjects under consideration by Working Group III (WGIII). To get first-hand insights into the current status…
The New York International Arbitration Center’s (“NYIAC”) annual Grand Central Forum took place on 13 July 2022. The event coincided with the 55th session of the United Nations Commission on International Trade Law (“UNCITRAL”) held in New York which, among other topics, focused on the recent fourth draft of the joint ICSID-UNCITRAL Code of Conduct…
Two years since it was published, the draft of the Code of Conduct for Adjudicators in International Investment Disputes is still subject to discussion and refinement by States and other stakeholders participating in the UNCITRAL Working Group III (WG III). This evolving instrument, developed jointly by the ICSID and UNCITRAL Secretariats, is the first attempt…
On April 19, 2021, the Secretariats of the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL) released the second draft of the Code of Conduct for Adjudicators in International Investment Disputes, a key feature of the Investor-State Dispute Settlement (ISDS) reform process which is presently under…
In 2017 Spain was ordered to pay Eiser €128 million on account of its failure to afford fair and equitable treatment. This award was subsequently annulled because the claimant-appointed arbitrator omitted to disclose a professional relationship with the claimants’ damages expert which led to, inter alia, the tribunal being improperly constituted. The full costs of…
“To disclose or not to disclose?” no longer seems to be a question for international arbitrators. The narrative and policy space surrounding the independence and impartiality of international arbitrators has been consistently driven towards maximum disclosure obligations. This is evidenced in recent legal instruments seemingly blurring the lines between the recognized ethical standards for arbitrators,…
The ITA (Institute for Transnational Arbitration) – ALARB (Latin American Society of Arbitration) Americas Workshop took place virtually on 2-4 December 2020. The conference focused on the role of arbitrators, their liabilities, challenges, and the need for increased diversity efforts. The conference was co-chaired by Julie Bédard (Skadden, New York), and Maria Inés Corrá (Bomchil, Buenos…
Introduction In spite of delays and shifting priorities owing to the pandemic, institutional efforts to reform the investor-state dispute settlement (ISDS) regime have continued throughout 2020. In this post, we look back at our coverage of the work of UNCITRAL Working Group III (“WGIII”) on investor-State arbitration reform, especially in light of the 2021 reform…
The Institute for Transnational Arbitration (“ITA”) hosted a four-part webinar discussing the Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, between 21-25 September 2020. Each part addressed specific practical considerations raised by the matters addressed in the Draft Code of Conduct: issue conflict, double hatting, repeat appointments, and implementation and enforcement of the…
Just like many of us have learned to work remotely these past few months, those leading the efforts to reform international arbitration have also had to endure the constraints imposed by the pandemic. At the first-ever virtual ITA-ASIL conference, held on 24 June 2020, Professor Chiara Giorgetti from the University of Richmond School of Law…
Today, there is no universal code of conduct, no single professional regulatory organization or global certification process in the field of investor-state dispute settlement (“ISDS”). Instead, the field of international arbitration is didactically governed by self-policing, episodic, and distinct ad hoc measures serving to collectively safeguard the integrity of the international arbitration process. On the…
On 1 May 2020, ICSID and UNCITRAL released the long-awaited Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS) (“Draft Code”) as previously reported and discussed. Article 1.1 of the Draft Code provides that it applies to “all persons serving as adjudicators in ISDS proceedings”, defined broadly to include arbitrators, ad hoc committee…
The Changing Landscape of the ISDS System The ongoing global discussions on the reform of the Investor-State Dispute Settlement (ISDS) system have been broad in scope and covered a wide range of concerns. As previously documented on this blog, the governments participating in the UNCITRAL Working Group III – ISDS Reform (WG III) have determined…
On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…
