At the last session of the United Nations Commission on International Trade Law, held in Vienna from 3 to 21 July 2023, Member states approved a Code of Conduct for arbitrators sitting in both ICSID and UNCITRAL investment proceedings. Although the final text has yet to be published, the new Code will regulate the practice of “double hatting”.
To date, the Code of Conduct as approved has not yet been published. However, the last draft version of the Code as put to the vote (accessible by clicking here), as well as press releases confirm the approval of the key points of this new Code.
In particular, the Code aims to regulate the practice of “double-hatting”, which describes professionals acting as arbitrator and, at the same time, as counsel or expert in other investment arbitrations. Thus, under the terms of Article 4 of the latest published version of the Code, arbitrators are prohibited from acting concurrently as counsels or experts in other proceedings concerning (i) the same measures; (ii) the same parties or parties related to them; or (iii) the same provisions of the same instrument of consent. This prohibition generally persists for three years following the end of the proceedings.
Further, the Code formalizes the obligations of disclosure imposed on arbitrators prior to acceptance of their appointment and throughout the proceedings. In particular, Article 11 requires arbitrators to disclose: “Any financial, business, professional or close personal relationship in the past five years with : (i) Any disputing party; (ii) The legal representative(s) of a disputing party in the proceeding; (iii) Other Arbitrators and expert witnesses in the proceeding; and (iv) Any person or entity identified by a disputing party as being related or as having a direct or indirect interest in the outcome of the IID proceeding, including a third-party funder”. The sanction, however, remains light, as the Code provides that a failure to disclose does not in itself establish a lack of impartiality from the arbitrator.
