Coming to the articles of the code, there are three or four notable provisions which are more of obligatory behavior and ethical practices for arbitrators. The draft code of conduct for arbitrators reinforces independence and impartiality, broadens the disclosure requirement and regulates the practice of so-called double-hatting. Double-hatting is the practice of arbitrators also acting as counsel or experts in other ISDS cases. The practice is widespread but has long been criticised as undermining ISDS by fostering the perception that arbitrators lack neutrality. On the other hand, defenders of the practice say experience as counsel makes a better arbitrator and that excessive regulation will discourage younger arbitrators from accepting appointments.
Coming to independence and impartiality, it is supposed to be a uninterrupted duty for arbitrators. Independence refers to the absence of any external control, in particular, the absence of relations with a party that might influence an adjudicator’s decision. Impartiality means the absence of bias or predisposition of an adjudicator towards a disputing party or issues raised in the proceedings. In practice, the duty of independence and impartiality is embodied in the duty of adjudicators to avoid conflicts of interest. The standard of appearance of a lack of independence or impartiality is an objective one, based on a reasonable evaluation of the evidence by a third party and is akin to the notion of justifiable doubts.
Another notable provision included in the draft code is that of duty of disclosure, which exists all the time. A prospective arbitrator should disclose all circumstances that may affect his or her independence and impartiality and continue to do so once she or he is appointed. The disclosure obligations are very pivotal to the code as they assist in identifying conflicts of interest and compliance with other obligations in the code, mainly, the possible lack of independence and impartiality. The disclosure standard is quite broad and can cover any circumstance that might give rise to reasonable doubt as to the independence or impartiality of an arbitrator or nominee. The circumstances to be disclosed are not limited in time, meaning that a circumstance which arose more than five years before the candidate was contacted about the appointment would need to be disclosed if it is likely to give rise to justifiable doubts.
Confidentiality, integrity and competence are few other important provisions that have been included in the draft code. It has been reported in Global Arbitration Review that the latest draft codes are the result of “some hard-fought compromises” – some which impose “new and burdensome obligations which will purport to change the way arbitrators in investment disputes operate”.
Source: Barandbench
