6 May 2024

UNCITRAL Code of Conduct for Arbitrators in International Investment Dispute Resolution

UNCITRAL Regional Centre for Asia and the Pacific
Asian Academy of International Law

On 6 May 2024, UNCITRAL-RCAP and AAIL jointly hosted an event to explore the Code of Conduct for Arbitrators in International Investment Dispute Resolution, which UNCITRAL adopted during its 56th annual session held in July 2023.

The event started by Ms Anna Joubin-Bret’s Keynote Speech highlighting the important features of the Code. The Code marked the effort of the international community to address certain concerns about the perceived lack of legitimacy in the ISDS system, such as double-hatting and disclosure obligations.

The Keynote Speech was followed by the panel discussion moderated by Ms Teresa Cheng SC, Founder Member and Co-Chair of AAIL, with whom Ms Anna Joubin-Bret, Mr Toby Landau KC and Mr Justin D’Agostino MH joined. The panel discussed the importance of maintaining users’ trust in the ISDS system. It was in agreement that the adoption of the Code was a moderate but important step of the international community to address some of the users’ concerns. While one may argue that the Code only provides for the international community’s ‘least common denominator’, the panel generally considered that the Code would continue to be developed and improved to meet the users’ expectations. The panel also discussed in some detail certain clauses of the Code such as clauses addressing ‘double/multiple-hatting’ (Article 4) and the arbitrator’s disclosure obligations (Article 11). The panel took notice of the divergent views on the issue of ‘double/multiple-hatting’ and shared their insights on scenario(s) which might give rise to real concern about an arbitrator’s independence or impartiality. It was suggested that Article 4 provides useful guidance drawing a line between ‘permissible’ double/multiple-hatting on one hand; and ‘impermissible’ double/multiple-hatting on the other. The exchange between the panel and the floor on the issue of disclosure obligation was lively and the panel generally agreed that disclosure was important to ensure an arbitrator’s independence and impartiality. The dialogue also highlighted the necessity for a strong framework that builds trust and ensures the system’s adaptability to the evolving concerns of all stakeholders.

What attendees say

• Excellent, the panel discussion was indeed very interesting.
• We learned a lot from the practitioners and insiders.
• It did bring me up to speed with the status of the protocols.
• The discussion on the Code of Conduct is timely as it is still new to us.
• The discussion was very relevant and practical. The speakers displayed their wealth of knowledge through years of experience in the field.