Drafting a Twenty-First Century Code of Conduct for International Investment Adjudicators

Abstract

An “ethics explosion” is emerging in the international investment arena in many different ways. Along with the EU’s strong desire to regulate the ethical aspects of adjudicators’ duties in its latest generation of IIAs, whether already in force or still under negotiation, a growing number of non-European IIAs and Model Agreements also contain provisions that include references to ethics and sometimes additionally provide a code of conduct for investment adjudicators. As a logical consequence of this, ICSID, hitherto the heavyweight par excellence in the investment resolution field, has also underlined the growing importance of ethical issues in the course of its on-going rule amendment process. In the same vein, since 2017, the UNCITRALWorking Group III has been reflecting on the need for and potential content of an Investor-State Dispute Settlement Reform and has devoted special attention to ISDS court members. As the winds of change are pointing towards the creation of a Multilateral Investment Tribunal, the need to count on an all-embracing code of conduct with a vocation for universality is becoming more evident. ICSID has responded to these global perspectives by partnering with UNCITRAL to present a 2020 Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement. In spite of the fact that the Code of Conduct is still at draft stage, it is worth devoting this chapter to analyzing its content and paying attention to the justifications and clarifications provided by its institutional authors. This also entails indirectly analyzing other recent codes of conduct, which are compared with the new ICSID-UNCITRAL proposal.

Keywords: Ethics, Code of conduct, Investment arbitrators, Independence, Impartiality, Disclosure, Confidentiality, Personal diligence and integrity, Multilateral Investment Court (MIC), ICSID

JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52