The first of four webinars focusing on the most urgent elements of the Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement (available at this link), the Part One webinar focuses on arbitrator issue conflicts as addressed in Draft Code of Conduct Article 5 titled “Conflicts of Interest: Disclosure Obligations.”
While Article 5(1) sets out the general principle that “[c]andidates and adjudicators shall avoid any direct or indirect conflict of interest” and to that end “shall disclose any interest, relationship or matter that could reasonably be considered to affect their independence or impartiality,” Article 5(2) would require candidates and adjudicators to make disclosures relating to the following four categories of potential conflicts: (a) relationships that may be relevant to the proceedings, either to the parties, the parties’ counsel, or past or present relationships with adjudicators in the dispute; (b) any direct or indirect financial interest; (c) all ISDS cases with which the candidate or adjudicator has been involved; and (d) a list of all publications by the adjudicator or candidate, with an additional proposal to also disclose relevant public speeches.
Overview of the five types of arbitrator issues conflicts
At the heart of the issue of issue conflicts is the notion that the arbitrator has pre-judged certain aspects of an ISDS case. Panelist Martina Polasek provides an overview of the following five most common sources of potential issue conflicts: an arbitrator’s previous publications (17:30), an arbitrator’s public statements about the case or a party to the proceedings (18:30), an arbitrator’s previous or concurrent arbitral appointments (19:15), where an arbitrator has acted (or is concurrently acting) as counsel in a similar dispute, which is often referred to as “double-hatting” (22:13), and an arbitrator’s prior relationship with a party, affiliates, counsel or experts involved in the proceeding (22:54).
Mandatory disclosure of all publications – potential chilling effect on academic works?
Article 5(2)(d) of the Draft Code of Conduct provides that adjudicators shall disclose “[a] list of all publications by the adjudicator or candidate.” Panelist Lucy Reed suggests that the requirement to disclose “all” publications may be overly broad (as it includes all publications, i.e., even those that are not relevant to ISDS), and could have a chilling effect on the scholarly writing and informed commentary that is central to the field of international arbitration, potentially discouraging younger practitioners and arbitrators from publishing such works.