Dr Vanina Sucharitkul, Partner at Rajah & Tann Singapore, has contributed an article titled “The UNCITRAL Code of Conduct for Arbitrators in International Investment Disputes: Striking the Right Balance?” to the Asian International Arbitration Journal (Volume 21, Issue 2) (“AIAJ“).
The independence and impartiality of arbitrators are widely accepted as being of paramount importance both to disputing parties, as users of the system, and the legitimacy of investment arbitration as a whole. To that end, the UNCITRAL Code of Conduct for Arbitrators in International Investment Disputes (“Code“) addresses two issues impacting on arbitrator independence and impartiality, namely (i) the regulation of the “double-hatting” phenomenon, where individuals serve concurrently as arbitrators and counsel in separate proceedings; and (ii) disclosure obligations designed to meet concerns of partiality and bias.
The article traces the background and rationale for the Code, then examines how the Code’s provisions relating to the two issues of “double-hatting” and disclosure requirements have evolved. Finally, it critically evaluates the Code’s practical impact with a particular focus on its implications for the promotion of diversity, party autonomy and sustainability of the legitimacy of investor-state dispute settlement (“ISDS“), including a potential chilling effect on the diversity and sustainability of the arbitrator pool. It also considers two major constraints on the Code’s effectiveness: (i) its reliance on voluntary adoption by parties, and (ii) the lack of robust enforcement mechanisms. Ultimately, while the Code marks an important step in ISDS reform, its impact will hinge on integration into binding treaty frameworks, and the political will of states and stakeholders to ensure meaningful enforcement.
Published in collaboration with the Singapore International Arbitration Centre (SIAC), the AIAJ is a leading journal on issues in international commercial arbitration in the Asia-Pacific region. Each issue contains a variety of articles such as analytical commentaries on international arbitration developments, and updates on recent case law, legislative enactments and arbitral awards throughout Asia.
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This article was authored by Dr Vanina Sucharitkul.
