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Issue 2

Focus on the Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement

Part Three: Should There Be Limits to Repeat Appointments?

Speaker: Mark Feldman

Mark Feldman (Peking University) discusses repeat appointments in the context of impartiality and independence.  He notes that a duality exists amongst practitioners where some consider repeated appointments as a sign of competency and others view it as evidence that an arbitrator lacks independence.  Professor Feldman also addresses the difficulty in rulemaking that allows for discretion, rather than absolutism,  in considering the totality of a case’s circumstances to judge impartiality and independence.

Speaker: Victoria Shannon Sahani

Victoria Shannon Sahani (Arizona State University) discusses various tensions in investor-state arbitration relevant to repeated appointments.  Professor Sahani acknowledges that in constructing an investor-state regime, state actors must confront the tension between the customizability of the process and predictability.  She notes that the autonomy of parties to select arbitrators that they believe hold views supporting their position inherently challenges the integrity of arbitration as an adjudicative process.  The selection of arbitrators also involves a tension between the parties’ desire for consistency in the interpretation of treaty provisions and their desire for arbitrators to be free to consider each situation independently.

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