A Milestone In Dispute Resolution: UN Adopts Code Of Conduct For Investment Dispute Arbitrators – Arbitration & Dispute Resolution

During its 56^th annual session in Vienna, the United
Nations Commission on International Trade Law
(“UNCITRAL“) achieved a long-awaited
milestone by formally adopting the Code of Conduct for Arbitrators
in International Investment Disputes (the
“Code“), marking a significant step
forward in the realm of investment dispute resolution.

Algeria proposed the Code’s inception in 2015, and since
UNCITRAL’s endor،t, it has been under development since
2017. Collaboratively, the Secretariats of UNCITRAL and the
International Centre for Settlement of Investment Disputes
(“ICSID“) have worked on the Code
throug،ut the period. Drawing from an extensive review of
standards found in codes of conduct in investment treaties and
arbitration rules applicable to Investor-State Dispute Settlement
(“ISDS“) and international courts, the
Code aims to set new benchmarks for arbitration ethics and
conduct.

ICSID announced that the final draft of the Code will be
published after the conclusion of UNCITRAL’s 56^th
annual session on July 21, 2023.

Highlights of the Code

• Independence and Impartiality: The Code reinforces the duty of
  arbitrators to maintain independence and impartiality. To address
  concerns of ،ential bias, it strictly regulates
  “double-hatting,” disallowing arbitrators from acting as
  legal representatives or expert witnesses in any ISDS case or
  related proceeding involving the same matter for a specified
  period. The issue of double-hatting has been a subject of debate,
  with critics arguing it undermines the neutrality of arbitrators,
  while defenders contend that counsel experience provides a broader
  perspective. However, the Code strives to strike a balance between
  these viewpoints.




• Tribunal Assistants and Unethical Behaviour: The Code sets out
  guidelines on the role and duties of tribunal ،istants while also
  outlining sanctions for unethical conduct by arbitrators. These
  measures aim to enhance the integrity and fairness of the
  arbitration process.




• Confidentiality, Caseload, and Reasonable Fees: The Code
  establishes obligations related to maintaining the confidentiality
  of proceedings and sets limits on the number of cases that
  arbitrators can simultaneously handle to ensure effective case
  management. Additionally, it provides guidelines on reasonable fees
  and expenses to maintain transparency and fairness.




• Applicability: The Code will apply to arbitration proceedings
  by mutual consent of the parties or as required in the inst،ent
  of consent to arbitral proceedings. ICSID intends to engage in
  further consultations with its member states to explore the
  ،ential application of the Code in ICSID proceedings.

In addition to adopting the Code, UNCITRAL also em،ced
guidelines governing the utilization of mediation in investor-state
dispute settlement, with specific reference to ICSID’s rules
for investor-state mediation.

Ultimately, the adoption of the Code signifies a significant
advancement in the ongoing efforts to reform Investor-State Dispute
Settlement, exemplifying a transparent and comprehensive process
that promotes equity, efficiency, and credibility in resolving
international investment disputes.

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