REGULATING THE REGULATORS: EXPLORING THE DRAFT UNCITRAL/ICSID CODE OF CONDUCT
One recurring criticism of investor-state dispute settlement (ISDS) relates to the power bestowed on an arbitrator and has resulted in a global call to action to regulate arbitrator conduct. Within this context, different arbitral institutions have approached codification in an international and commercial context, including the American Arbitration Association and International Centre for Dispute Resolution’s (AAA-ICDR’s) Code of Ethics for Arbitrators in Commercial Disputes, the Chartered Institute of Arbitrators’ (CIArb’s) Code of Professional and Ethical Conduct, the Club Español de Arbitraje’s Code of Good Practices, and the Singapore International Arbitration Centre’s (SIAC’s) Practice Code of Ethics for an Arbitrator. The ISDS context is necessarily different, and the International Bar Association (IBA) has opined with Rules of Ethics for International Arbitrators and separately, Guidelines on Party Representation in International Arbitration (IBA Guidelines). The United Nations Commission on International Trade Law’s (UNCITRAL’s) Working Group III (WGIII) dedicated several sessions to investor-state reform, with a recurring agenda item to tackle independence and impartiality on the part of arbitrators and decision makers in ISDS – memorialised in background notes for the 36th Session in 2018 and the 38th Session in 2019, the latter including a specific reference to a code of conduct. On 1 May, UNCITRAL and the International Centre for the Settlement of Investment Disputes (ICSID) issued a new (and first) Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement (Draft Code), with an open consultation period to run until 15 October. The Draft Code is a pivot from the IBA Guidelines, in an effort to focus and define two anchoring principles – independence and impartiality – with flexibility of approach and optionality for member states.
Oct-Dec 2020 issue
New York International Arbitration Center
Arnold & Porter Kaye Scholer LLP