UNCITRAL Publishes Final Codes Of Conduct For Arbitrators And Judges In International Investment Disputes

• Published date: 22 February 2024
• Law Firm: Herbert Smith Freehills
• Author: Ms Hannah Ambrose and Marco De Sousa

UNCITRAL has published the final texts of its Code of Conduct for Arbitrators in International Investment Disputes (Arbitrators' Code) and Code of Conduct for Judges in International Investment Disputes (Judges' Code).

The Codes seek to address concerns about the perceived lack of independence and impartiality among international arbitrators and judges by implementing new limitations on the practice known as 'double-hatting''where an arbitrator or judge simultaneously serves as legal counsel or expert in other cases. Additionally, the Codes include provisions that establish best practices on matters such as conflict of interest disclosures, the regulation of arbitrators' fees and expenses, and the responsibilities and functions of tribunal assistants.

Background

The Codes have been in development for several years. The idea to develop a code of conduct for adjudicators was first proposed by Algeria in 2015 and was taken up by UNCITRAL's Working Group III, which was established in 2017 with a mandate to develop reforms to the system of Investor-State Dispute Settlement (ISDS).

Working Group III collaborated with the International Centre for the Settlement of Investment Disputes (ICSID) to prepare a draft text. An initial draft was produced in May 2020 and, following a consultation period with State delegates and other stakeholders, underwent several revisions, with the main area of contention being the regulation of 'double-hatting'.

In September 2022, it was announced that two distinct texts would be submitted to UNCITRAL for approval: one for arbitrators and the other for judges, the latter as part of the proposed establishment of a standing mechanism to resolve investment disputes (such as the European Commission's proposed Multilateral Investment Court).

UNCITRAL and ICSID published advanced drafts of the Codes and commentaries in May 2023. The draft Arbitrators' Code was formally adopted by UNCITRAL members on 14 July 2023, at its 56^th annual session in Vienna. The draft Judges' Code was adopted 'in principle', pending further progress on a standing mechanism.

Updated texts and commentaries were published in October 2023 incorporating amendments proposed by UNCITRAL members at the 56^th session. The final texts were approved by the UN General Assembly on 7 December 2023, and published in February 2024.

The Codes add to an existing body of guidance available to arbitrators on issues of independence, impartiality, conflicts of interest and disclosure...