The panel addressed the challenges of implementing the draft Code due to the decentralized nature of ISDS. It was suggested that incorporating the draft Code into new and existing treaties could be a long-term solution for its implementation. However, given that treaty negotiations and ratification are often slow processes, arbitral institutions may be able to implement the draft Code on a shorter timeframe. For example, as part of ICSID’s ongoing rule amendment process, it was suggested that ICSID could include the draft Code as part of the arbitrator’s declaration of independence and impartiality. This could result in implementation by 2022.

The panel addressed structural concerns in the draft Code regarding enforcement. For instance, the draft Code broadens disclosure requirements for arbitrators, but does not presently change the consequences for failure to disclose. Without further guidance on what these consequences might entail (e.g., disqualification), there is a risk the parties’ expectations will not be met and the draft Code’s objective to increase confidence in ISDS could be undermined.

The panel provided insight into UNCITRAL Working Group III’s discussion regarding potential sanctions for violating the draft Code. Sanctions could include disqualification, challenges to the award, reputational harm, monetary penalties, and notifying professional associations of violations. Working Group III has also discussed potential unintended consequences of higher standards and stricter enforcement, such as whether arbitrators may hesitate to accept appointments.