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The Duty of Disclosure and Conflicts of Interest in Investment Arbitration Disputes

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Key Duties of International Investment Arbitrators

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Abstract

This chapter offers some reflections on conflicts of interest in the international investment milieu and their relationship with the duty of disclosure. Special attention is paid to IBA Guidelines on Conflicts of Interest in International Arbitration, and its present and future relevance in the investment context. The chapter also focuses on three highly controversial issues of the contemporary ISDS system: repeat appointment, issue conflict and multiple hatting. The final aim of this Chapter is to put forward various proposals on the specific content that should be attributed to these issues in contexts such as ICSID, the ICS, and a possible MIC.

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Notes

  1. 1.

    This term has been chosen owing to its breadth and the fact that it is used by the IBA.

  2. 2.

    IBA Guidelines (2004).

  3. 3.

    This is a simplified summary of the of the IBA Guidelines’ essential content. A more detailed analysis can be found in the bibliography cited in throughout this chapter, and also in De Witt Wijner et al. (2004).

  4. 4.

    Freyer and Bédard (2004), Ball (2005) and Lawson (2005).

  5. 5.

    The IBA Conflicts of Interest Subcommittee (2010).

  6. 6.

    Mullerat Obe (2012).

  7. 7.

    Nevertheless, this initial affirmation was in need of reinforcement from the 2014 Guidelines: “While the Guidelines were originally intended to apply to both commercial and investment arbitration, it was found in the course of the review process that uncertainty lingered as to their application to investment arbitration. Similarly, despite a comment in the original version of the Guidelines that their application extended to non-legal professionals serving as arbitrator, there appeared to remain uncertainty in this regard as well. A consensus emerged in favour of a general affirmation that the Guidelines apply to both commercial and investment arbitration”.

  8. 8.

    Other IBA texts have also been mentioned in these decisions, such as the Code of Ethics for International Arbitrators , in the case Compañía de Aguas v. Argentina, par 17.

  9. 9.

    Stating that the Guidelines are soft law: Nations v. Panamá, par 26.

  10. 10.

    Abaclat v. Argentina, par 78; Blue Bank v. Venezuela, par 62; Fábrica de Vidrios v. Venezuela (2016a), par 34.

  11. 11.

    Universal v. Venezuela, par 74.

  12. 12.

    Alpha v. Ukraine, par 56.

  13. 13.

    Tidewater v. Venezuela, par 41.

  14. 14.

    Urbaser v. Argentina, par 37.

  15. 15.

    Arbaclat v. Argentina, par 78; Blue Bank v. Venezuela, par 62; Tidewater v. Venezuela, par 41.

  16. 16.

    Burlington v. Ecuador; par 69, Fábrica de Vidrios v. Venezuela (2016a); par 34, Getma v. Guinée, par 80; Opic v. Venezuela, par. 52.

  17. 17.

    Urbaser v. Argentina, par 37; Repsol v. Argentina, par 74; ConocoPhillips v. Venezuela, par 59.

  18. 18.

    Caratube v. Kazakhstan, par 59; PIP v. Gabon, par 24; Universal v. Venezuela, par 74. Reflecting on the reception of these Guidelines, IBA Arbitration Guidelines and Rules Subcommittee (2016).

  19. 19.

    Highlighting the importance of soft law in the international arbitration sphere, Arias (2018).

  20. 20.

    IBA (2004).

  21. 21.

    Their possible applicability is alluded to in some cases: “The provisions of the IBA General Standard 7 c (were they applicable)”, EDF v. Argentina, par 100; “en la hipótesis de que Directriz 3.3.9 de las Directrices de la IBA resultare aplicable”, Total v. Argentina, par 144.

  22. 22.

    Alpha v. Ukraine, pars 62 and 66.

  23. 23.

    National Grid v. Argentina, par 82.

  24. 24.

    Perenco v. Ecuador, par 56. In this case, the parties agreed not to apply the ICSID disqualifications standards and the PCA resorted to the IBA Guidelines. Supra, Sect. 2.1. and infra Sect. 4.3.

  25. 25.

    The Decision states: “in the instant case, from the point of view of a “reasonable and informed third party” (General Standard 2 c) of the IBA Guidelines (…) there would be justifiable doubts about the arbitrator’s impartiality and independence as an arbitrator if (…)” Vito v. Canada, par 36.

  26. 26.

    CETA (2014).

  27. 27.

    CETA (2016).

  28. 28.

    Article 15, Kingdom of Norway (2015), and Article 20.6. of the Netherlands draft Model BIT. Netherlands (2018).

  29. 29.

    In commercial arbitration, the KLRCA Code of Conduct for arbitrators refers to the IBA Guidelines as a “point of reference” when determining the disclosure requirement and whether an Arbitrator is conflicted.

  30. 30.

    So far, it is not known whether the reference to supplemental rules in Chapter 8 of CETA—Investment—could be covered by something similar to the contents of Annex B to Chapter 29—Dispute Settlement, in which a catch-all phrase (“a candidate shall disclose any interest, relationship or matter that is likely to affect her or his independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding”), is combined with the following breakdown: “Without limiting the generality of the foregoing, candidates shall disclose the following interests, relationships and matters: (1) any financial interest of the candidate: (a) in the proceeding or in its outcome, and (b) in an administrative proceeding, a domestic court proceeding or another panel or committee proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration; (2) any financial interest of the candidate’s employer, partner, business associate or family member: (a) in the proceeding or in its outcome, and (b) in an administrative proceeding, a domestic court proceeding or another panel or committee proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration; (3) any past or existing financial, business, professional, family or social relationship with the interested parties in the proceeding, or their counsel, or such relationship involving a candidate’s employer, partner, business associate or family member; and (4) public advocacy or legal or other representation concerning an issue in dispute in the proceeding or involving the same matters.” Article 20.6. of the Netherlands draft Model BIT also refers to “any supplemental rules”, but in this case they would be logically agreed upon by the Contracting Parties. Netherlands (2018).

  31. 31.

    Article 15—Conflict of Interest and Code of Conduct. Kingdom of Norway (2015).

  32. 32.

    The brief indication in Article 22—Code of Conduct (“A conflict of interests shall exist inter alia if a Panel member has served as legal counsel to one of the disputing parties in a previous matter”). Federal Ministry for Economic Affairs and Energy (2015).

  33. 33.

    Joelson (2015), Cinelli Moreira (2014), pp. 142–147. These criticisms do not only come from the academic sector, but also from the judicial. For example, in March 2016, an English High Court of Justice decision stated that the controversy undoubtedly fell within the description in Paragraph 1.4 of the “Non-Waivable Red List” in the 2014 IBA Guidelines. Nevertheless, the judge decided that “the fair minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the Canadian arbitrator was biased or lacked independence or impartiality”. This outcome was decided under English law, but it was clearly stated that there were weaknesses in the 2014 IBA Guidelines from the judge’s perspective. The judge did not take the shortcut of saying that the 2014 IBA Guidelines were not a statement of English law. On the contrary, he recognised that the arbitration was international and therefore did take into account the 2014 IBA Guidelines, explaining “why I do not, with respect, think they can yet be correct”. [2016] EWHC 422 (Comm). Case No: CL-2015-000344. Analysing the case, Longley and Ngai (2016), pp. 1–5.

  34. 34.

    For instance, Krajewski highlights that: “the IBA Guidelines only relate to an individual conflict of interests, and not to systemic interest in upholding investment arbitration for the benefit of investors”. Krajewski (2014), pp. 17–18. In addition, investment arbitration involves aspects of public interest and the pool of potential arbitrators is limited, as is the likelihood of annulling ICSID awards. Fry and Stampalija (2014), p. 260; Rubins and Lauterburg (2010), p. 179.

  35. 35.

    Supra, Chap. 2.

  36. 36.

    NAFTA (1994) Code of Conduct.

  37. 37.

    Article 18 CAM Arbitration Rules: “When giving notice of their acceptance the arbitrators shall submit their statement of Independence to the Secretariat. In the statement of independence, the arbitrator shall disclose specifying the time and duration: a) any relationship with the parties, their counsel or any other person or entity involved in the arbitration which may affect his/her impartiality or Independence; b) Any personal or economic interest, either direct or indirect in the subject matter of the dispute, c) Any bias or reservation as to the subject matter of the dispute”. CAM (2010a).

  38. 38.

    Article 2.2 of the SIAC Code of Ethics for an Arbitrator.: “A prospective arbitrator shall disclose to the Registrar and any party who approaches him for a possible appointment: a) any past or present close personal relationship or business relationship, whether direct or indirect, with any party to the dispute, or any representative of a party, or any person known to be a potentially important witness in the arbitration; the extent of any prior knowledge he may have of the dispute”. SIAC (2015).

  39. 39.

    The ICC Note states: “Each arbitrator or prospective arbitrator must assess what circumstances, if any, are such as to call into question his or her independence in the eyes of the parties or give rise to reasonable doubts as to his or her impartiality. In making such assessment, an arbitrator or prospective arbitrator should in particular, but not limited to, pay attention to the following circumstances: The arbitrator or prospective arbitrator or his or her law firm represents or advises, or has represented or advised, one of the parties or one of its affiliates. The arbitrator or prospective arbitrator or his or her law firm acts or has acted against one of the parties or one of its affiliates. The arbitrator or prospective arbitrator or his or her law firm has a business relationship with one of the parties or one of its affiliates, or a personal interest of any nature in the outcome of the dispute. The arbitrator or prospective arbitrator or his or her law firm acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise. The arbitrator or prospective arbitrator or his or her law firm is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality. The arbitrator or prospective arbitrator has a professional or close personal relationship with counsel to one of the parties or the counsel’s law firm. The arbitrator or prospective arbitrator acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates. The arbitrator or prospective arbitrator acts or has acted as arbitrator in a related case. The arbitrator or prospective arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel’s law firm. (…) For the scope of disclosures, an arbitrator will be considered as bearing the identity of his or her law firm, and a legal entity will include its affiliates. In addressing possible objections to confirmation or challenges, the Court will consider the activities of the arbitrator’s law firm and the relationship of the law firm with the arbitrator in each individual case. Arbitrators should in each case consider disclosing relationships with another arbitrator or counsel who is a member of the same barristers’ chambers. Relationships between arbitrators, as well as relationships with any entity having a direct economic interest in the dispute or an obligation to indemnify a party for the award, should also be considered in the circumstances of each case”. ICC (2017), par. 20.

  40. 40.

    CANON II of the ABA Code affirms: “An arbitrator should disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality. Persons who are requested to serve as arbitrators should, before accepting, disclose: (1) any known direct or indirect financial or personal interest in the outcome of the arbitration; (2) any known existing or past financial, business, professional or personal relationships which might reasonably affect impartiality or lack of independence in the eyes of any of the parties. For example, prospective arbitrators should disclose any such relationships which they personally have with any party or its lawyer, with any co-arbitrator, or with any individual whom they have been told will be a witness. They should also disclose any such relationships involving their families or household members or their current employers, partners, or professional or business associates that can be ascertained by reasonable efforts; (3) the nature and extent of any prior knowledge they may have of the dispute; and (4) any other matters, relationships, or interests which they are obligated to disclose by the agreement of the parties, the rules or practices of an institution, or applicable law regulating arbitrator disclosure”. ABA (2004). Detailing the origins of this text, Feerick (2002).

  41. 41.

    Article 4.2 of the TAB Code establishes that: “A prospective arbitrator must disclose: a) (Reformulated) Any relation past or present, whether direct or indirect as set out in Article 3.3., including previous appointments as arbitrator, with any party to the dispute, or any representative of a party, or any person who is known to be potentially a relevant witness in the arbitration. As regards current relations, the duty of disclosure is applicable regardless of its magnitude, but as regards past relations it is only applicable if such relations were of a significant nature in relation to the professional or business relations of the arbitrator. Failure to disclose an indirect relation unknown to a prospective arbitrator shall not be grounds for disqualification unless it could have been discovered by making reasonable enquiries; b) the nature and duration of any social relation with any party or any person who is known to be potentially a relevant witness in an arbitration; c) the nature of any previous relation with any co-arbitrator (including previous joint services as arbitrators); d) the extent of any prior knowledge the prospective arbitrator may have of the dispute; e) the extent of any obligation which might affect his availability to discharge his duties as an arbitrator as far as is reasonably foreseeable”. TAB (2009).

  42. 42.

    Annex 2 of the Rules declares: “Illustrative List of Information to be Disclosed: This list contains examples of information of the type that a person called upon to serve in a dispute should disclose pursuant to the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. Each covered person, as defined in Section IV:1 of these Rules of Conduct has a continuing duty to disclose the information described in Section VI:2 of these Rules which may include the following: (a) financial interests (e.g. investments, loans, shares, interests, other debts); business interests (e.g. directorship or other contractual interests); and property interests relevant to the dispute in question; (b) professional interests (e.g. a past or present relationship with private clients, or any interests the person may have in domestic or international proceedings , and their implications, where these involve issues similar to those addressed in the dispute in question); (c) other active interests (e.g. active participation in public interest groups or other organisations which may have a declared agenda relevant to the dispute in question); (d) considered statements of personal opinion on issues relevant to the dispute in question (e.g. publications, public statements); (e) employment or family interests (e.g. the possibility of any indirect advantage or any likelihood of pressure which could arise from their employer, business associates or immediate family members).” WTO (1996).

  43. 43.

    Cristani (2014), p. 177.

  44. 44.

    Law Council of Australia (2017) and Fry and Stampalija (2014), p. 259.

  45. 45.

    It has been affirmed that: “we can welcome this reference to a text developed by the best specialists in the field (IBA) .... However, we can only be concerned about the reference to any other supplementary rule .... In fact, it is not desirable that the states party to the treaty engage in a rewriting of texts such as the IBA Guidelines.... Similarly, the drafting of a code of ethics on communications between parties and arbitrators is unnecessary, as this issue is addressed in the texts such as the IBA Guidelines on party representation .... As for the confidentiality of arbitration, this is already dealt with in texts such as arbitration rules and in many arbitration laws. And it does not seem useful to add anything. Excessive regulation can therefore only lead to undesirable results” (author’s translation) (“on peut se féliciter de cette référence à un texte élabore par les meilleurs spécialistes en la matière (IBA)…. On ne peut cependant que s’inquiéter de la référence faite à toute autre règle supplémentaire…. In n’est en effet pas souhaitable que les états parties au traité s’engagent dans une réécriture de textes tels que les lignes directrices de la IBA…. De même, la rédaction d’un code de déontologie portant sur les communications entre les parties et les arbitres parait inutile, cette question étant traitée dans les textes telles que les lignes directrices de la IBA sur la représentation des parties…. Quant à la confidentialité de l’arbitrage celle-ci est déjà traitée dans les règlements d’arbitrage applicables et dans de nombreuses lois d’arbitrage. Et il ne parait pas utile d’ajouter quoi que ce soit. L’excès de réglementation ne pourra donc conduire qu’a des résultats indésirables”). Mourre and Fouret (2015), pp. 581–582.

  46. 46.

    In the context of commercial arbitration, arbitral institutions such as CAM foresee that new regulations would supersede the IBA Guidelines, the document that this institution currently refers to: “When filling in the statement of independence, the arbitrator may consider the “IBA Guidelines on Conflicts of Interest in International Arbitration ”, attached to the Secretariat’s letter of appointment. Should the Arbitral Council decide on the statement of independence according to Article 18, Para. 4, of the Rules, then it will not be bound in its decision by the IBA Guidelines.” CAM (2010c).

  47. 47.

    For example, the classification regarding conflicts of interest proposed by Daele is very long and detailed: relationships of the arbitrator with a party, relationships of the arbitrator with a counsel of a party, relationships of the arbitrator with a barrister belonging to the same chambers, relationships of the law firm of the arbitrator with a party, relationships of the law firm of the arbitrator with counsel of a party, dual rule of the arbitrator, membership of other tribunals, writings and public statements, conduct of the arbitrator. Daele (2012).

  48. 48.

    IBA Subcommittee on Investment Treaty Arbitration (2016).

  49. 49.

    As will be explained in Sect. 3.4.3, this broad definition is not a perfect match with the phenomenon of multiple hatting. This approach was also emphasized in the Tidewater v. Venezuela case: “the conflict which may potentially arise from multiple arbitral appointments by the same party is of a different character from other connections to one of the parties, including service as counsel or other professional capacity”, par 60.

  50. 50.

    Fernández Pérez (2018).

  51. 51.

    IBA (2014).

  52. 52.

    It is worth noting that the exception in footnote 5 of the IBA Guidelines does not refer to investment arbitration: “It may be the practice in certain types of arbitration, such as maritime, sports or commodities arbitration, to draw arbitrators from a smaller or specialised pool of individuals. If in such fields it is the custom and practice for parties to frequently appoint the same arbitrator in different cases, no disclosure of this fact is required, where all parties in the arbitration should be familiar with such custom and practice”. IBA (2014).

  53. 53.

    Sobota explains the numerical difference (two or more occasions/on more than three occasions) between 3.1.3 (party or an affiliate thereof) and 3.3.8 (council or law firm) in the following way: “The more liberal standard for repeat appointments by the same counsel stems from the fact that concerns of overlapping issues and extra-record knowledge are less acute where the cases involve different parties. In addition, it has been considered “nearly unavoidable” that incidental business contacts and “at least some degree of acquaintance” may exist between arbitrators and advocates”. Sobota (2015), p. 298.

  54. 54.

    Kuo (2011), p. 250; Hollander (2008). Sometimes the dividing lines between the three figures examined in this section are blurred. For instance, in the Saint-Gobain v. Venezuela case, the investor alleged that: “There is a danger that [the arbitrator] will decide a certain issue in favor of Venezuela because he has argued the same, or similar, issues in favor of Argentina in the past and potentially in the future, and, in doing so, that he will not have sufficient regard to the merits of the case”. Saint-Gobain v. Venezuela, par 77. The investor—and the co-arbitrators, by discarding this argument- are not treating this circumstance as multiple appointments by the same type of party (State), but as an issue conflict.

  55. 55.

    Kuo (2011), p. 250; Hollander (2008), p. 2.

  56. 56.

    The analysis of ICSID awards shows that, when challenging an investment arbitrator, claimants sometimes pose a series of questions connected with the issue of repeated appointments to a greater or lesser extent. In Universal v. Venezuela, for instance, the investor put forward the following arguments to disqualify one of the arbitrators: multiple appointments by the same party, multiple arbitrations dealing with related issues, multiple appointments by the same counsel, and non-disclosure of other ICSID appointments by Venezuela. Universal v. Venezuela pars 75–96.

  57. 57.

    Infra, Sect. 3.4.2.

  58. 58.

    Giraldo-Carrillo (2011), pp. 75–106.

  59. 59.

    Infra, Chap. 5.

  60. 60.

    In EnCana v. Ecuador, the tribunal observed that: “The Respondent is also represented by the same legal firm, again something which is a matter for it to decide. Evidently, the Respondent and its legal advisers have a synoptic view of the various disputes related to the oil industry in Ecuador which may be denied to the Claimant and its legal advisers. But that is a natural inequality as between private companies and a host State , one which arises from their respective status and roles and which cannot be reversed en tant que tel.” In EnCana v. Ecuador, par 43.

  61. 61.

    Tidewater v. Venezuela, par 61. This dichotomy is also reflected in Caratube v. Kazakhstan (2014): “Be it only said that the Unchallenged Arbitrators are impressed in particular by the fact that there exists a sufficient number of potential arbitrators for an appointment to be made without any appearance being given of an existing link, real or suspected, between the arbitrator and the appointing party and its counsel . And conversely, that it is quite natural that a party and its counsel will wish to appoint the “best” arbitrator available for a given case and that prior experiences with that potential arbitrator are of course adequate to give that assurance: it is a matter of public record that some high repute firms active in investment arbitrations and of the highest ethical standards will repeatedly call for the same arbitrators to serve in several arbitrations”. Tidewater v. Venezuela, par 108.

  62. 62.

    Universal v. Venezuela, par 83.

  63. 63.

    In some cases, ICSID decisions not only underscore the merely indicative nature of the IBA Guidelines in order to dismiss a proposal to disqualify the arbitrator, but also argue that their quantitative content—e.g. the 3-year timeframe and the number of appointments is random. For instance, in Tidewater v. Venezuela, the two Members “begin their analysis of this question by observing that the question whether multiple appointments to arbitral tribunals may impugn the independence or impartiality of an arbitrator is a matter of substance, not of mere mathematical calculation. Whilst it is useful to have the guidance provided by Section 3.1.3 of the IBA Guidelines, this can be no more than a rule of thumb. Depending on the particular circumstances of the case, either fewer or more appointments might, in combination with other factors, be needed to call into question an arbitrator’s impartiality. There is perforce an arbitrary character about the limitation to two appointments within three years. Moreover, it is inherent in such a guideline that more than one appointment by the same party is not necessarily suggestive of a conflict”. Tidewater v. Venezuela, par 59.

  64. 64.

    Universal v. Venezuela: “[the arbitrator] has been appointed in more than twenty ICSID cases, evidencing that she is not dependent –economically or otherwise –upon respondent for her appointments in these [4] cases.” Universal v. Venezuela, par 77.

  65. 65.

    Tidewater v. Venezuela: “[the arbitrator] has joined unanimous preliminary decisions rejecting applications made by Venezuela. This fact tends to indicate that [the arbitrator] has been appointed on subsequent occasions because of her Independence, rather than the reverse.” Tidewater v. Venezuela, par 64.

  66. 66.

    The following statement, which nevertheless formed part of a decision dismissing the disqualification proposal submitted by the claimant, was promising in this sense: “We have reviewed with interest the decision of the remaining arbitrators on the proposal to disqualify an arbitrator in Tidewater. It is suggested by the arbitrators in that decision that multiple appointments as arbitrator by the same party in unrelated cases are a neutral factor in considerations relevant to a challenge. We do not agree. In our opinion, multiple appointments of an arbitrator by a party or its counsel constitute a consideration that must be carefully considered in the context of a challenge. In an environment where parties have the capacity to choose arbitrators, damage to the confidence that investors and States have in the institution of investor-State dispute resolution may be adversely affected by a perception that multiple appointments of the same arbitrator by a party or its counsel arise from a relationship of familiarity and confidence inimical to the requirement of independence established by the Convention. The arbitrators’ suggestion in Tidewater that multiple appointments are likely to be explicable on the basis of a party’s perception of the independence and competence of the oft appointed arbitrator is in our view unpersuasive. In a dispute resolution environment, a party’s choice of arbitrator involves a forensic decision that is clearly related to a judgment by the appointing party and its counsel of its prospects of success in the dispute. In our view, multiple appointments of an arbitrator are an objective indication of the view of parties and their counsel that the outcome of the dispute is more likely to be successful with the multiple appointee as a member of the tribunal than would otherwise be the case”. Opic v. Venezuela, par 47.

  67. 67.

    Further examples of this trend: Saba v. Turkey and Electrabel v. Hungary.

  68. 68.

    This decision makes an internal clarification of the term “numerous”, distinguishing between the additional occasion on which the arbitrator had been chosen by the law firm on behalf of Kazakhstan, and the multiple times he had been chosen by the same law firm on behalf of other clients. Following Daele’s approach, it would seem that the number of counsel appointments and the number of party appointments should indeed be taken into account together, as both stakeholders act together in the eyes of the non-appointing party. Daele (2012), p. 362.

  69. 69.

    Caratube v. Kazakhstan (2014), pars 90 and 93.

  70. 70.

    Ibid, par 75.

  71. 71.

    Ibid, par 107.

  72. 72.

    Daele (2012).

  73. 73.

    Supra, Sect. 2.4.

  74. 74.

    In EnCana v. Ecuador—an arbitration pursuant to the UNCITRAL Rules with the London Court of International Arbitration acting as Secretariat- the partial award on jurisdiction states: “[the arbitrator] cannot reasonably be asked to maintain a “Chinese wall” in his own mind: his understanding of the situation may well be affected by information acquired in the other arbitration. The most he can be asked to do is to disclose facts so derived whenever they appear to be relevant to any issue before this Tribunal. The Tribunal does not propose to deal with this question in a categorical way by ordering full advance disclosure to the Claimant of the pleadings in the other arbitration.” EnCana v. Ecuador, pars 45–46.

  75. 75.

    Article 8.27.10 CETA, Article 9.7 TTIP, Article 12.7 EU-Vietnam FTA and Article 8.7 JEFTA.

  76. 76.

    Schacherer (2016).

  77. 77.

    International Council for Commercial Arbitration (2016).

  78. 78.

    This text was worded slightly differently in the 2004 version of the IBA Guidelines: “the arbitrator has previously published a general opinion (such as in a law review article or public lecture concerning an issue which also arises in the arbitration (but this opinion is not focused on the case that is being arbitrated)”. IBA (2004).

  79. 79.

    The ICC Note states: “Each arbitrator or prospective arbitrator must assess what circumstances, if any, are such as to call into question his or her independence in the eyes of the parties or give rise to reasonable doubts as to his or her impartiality. In making such assessment, an arbitrator or prospective arbitrator should consider all potentially relevant circumstances, including but not limited to the following: (..) The arbitrator or prospective arbitrator or his or her law firm is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality. ICC (2017), p. 20.

  80. 80.

    All the cases addressed in the main text refer to professional writing, but references have been found to an unpublished case on professional speech. In Canfor Corporation v. United States of America; Terminal Forest Products Ltd. v. United States of America, UNCITRAL, the NAFTA arbitrator was challenged as a result of a speech he had previously given to the Canadian government council, in which he commented from the legal perspective various aspects of the US softwood lumber industry. Daele (2012), pp. 404–405. Concretely, the challenged arbitrator stated: “This will be the fourth time we have been challenged. We have won every single challenge on softwood lumber, and yet they continue to challenge us with respect to these issues. Because they know the harassment is just as bad as the process”. Legum (2005), p. 243.

  81. 81.

    Urbaser v. Argentina, par 46.

  82. 82.

    The Decision states: “if Claimant’s view were to prevail and any opinion previously expressed on certain aspects of the ICSID Convention be considered as elements of prejudgment in a particular case because they might become relevant or are merely argued by one party, the consequence would be that no potential arbitrator of an ICSID Tribunal would ever express views on any such matter, whether it may be procedural, jurisdictional, or touching upon the substantive rights deriving from BITs.” Urbaser v. Argentina, par 48.

  83. 83.

    The decision continues: “The wide spreading of ICSID awards has greatly contributed to dense exchanges of views throughout the world on matters of international investment law. This is very largely considered as a positive contribution to the development of the law and policies in this segment of the world’s economy. It goes without saying that such a debate would be fruitless if it did not include an exchange of opinions given by those who are actually involved in the ICSID arbitration process, whether they are writing and speaking as scholars, arbitrators, or counsel. Such activity is part of the “system” as well known to all concerned. Therefore, it seems extremely strange that to the Two Members to accept the Claimants’ position that a view previously expressed on an item relevant in an arbitral proceeding should be qualified as a prejudgment that demonstrates a lack of independence or impartiality”. Ibid, par 48.

  84. 84.

    In Repsol v. Argentina, the State considers that “el artículo del [árbitro] “hace suyo” el punto de vista del economista Sebastián Edwards en una publicación del 2008. Argentina sostiene que Edwards mantiene una visión despectiva de Argentina y que por lo tanto el [árbitro] tiene una visión “prejuiciosa y despreciativa de la República Argentina”. (…) Este tipo de visiones, además de ser discriminatorias y haber dado lugar a la recusación de otros árbitros, constituye la negación misma de la imparcialidad y, en definitiva, de la justicia” (“the arbitrator’s article “endorses” the point of view of the economist Sebastián Edwards in a publication of 2008. Argentina considers that Edwards maintains a derogatory view of Argentina and that therefore the arbitrator has a “prejudiced and contemptuous view of the Argentinian Republic”. (...) This type of visions, in addition to being discriminatory and having led to the disqualification of other arbitrators, constitutes the very negation of impartiality and, ultimately, of justice”) (author’s translation). Nevertheless, the President of the ICSID Administrative Council considered in this case that: “esta publicación refleja una opinión sobre una disposición legal que no se encuentra presente en el instrumento jurídico invocado en este caso. Asimismo, las referencias del [árbitro] a una publicación de un tercero no constituyen evidencia de la carencia manifiesta de imparcialidad contra Argentina, tal y como requiere el Artículo 57 del Convenio” (“this publication reflects an opinion on a legal provision that is not present in the legal instrument invoked in this case. Likewise, the arbitrator’s references to a publication of a third party do not constitute evidence of the manifest lack of impartiality against Argentina, as required by Article 57 of the Convention”) (author’s translation). Repsol v. Argentina, pars 30 and 79. In Saipem v. Bangladesh (unpublished challenge), the unchallenged arbitrators claimed that: “it is well established by national case law on the removal of arbitrators as well as in the practice of arbitration institutions that an arbitrator’s doctrinal opinions expressed in the abstract without reference to any particular case do not affect that arbitrator’s impartiality and independence, even though the issue on which the opinion is expressed may arise in the arbitration. It is not because a scholar has expressed general and abstract opinion that he or she will not consider the specificities of a given case and may not on such basis, form an opinion different from the one previously expressed.” International Council for Commercial Arbitration (2016).

  85. 85.

    It has been pointed out that: “the main sin would appear to be that the arbitrator did not repent of his earlier views when given an opportunity to support the new orthodoxy”. Griffith and Kalderimis (2016), p. 611.

  86. 86.

    CC/Devas v. India, par 58.

  87. 87.

    Ibid, par 64.

  88. 88.

    Schill (2014), p. 6.

  89. 89.

    Zamour (2015), pp. 227–245.

  90. 90.

    8 ICSID Rep. 398 (2005).

  91. 91.

    However, some commentators have observed that this approach would penalise the most-experienced arbitrators. International Council for Commercial Arbitration (2016), p. 65.

  92. 92.

    In some cases, they have “quadruple versatility”, as they also may intervene in arbitrations as legal experts. Infra, Sect. 3.4.3.

  93. 93.

    In this sense: “it is not much more convincing to draw a strict dividing line between opinions expressed as a scholar and those to change and is unrelated to the pattern of facts and arguments related to a particular case, Claimants are right to the extent that they argue that such opinion may nevertheless be a factor of influence when it comes to considering the same or similar issues in a particular dispute. In other words, a legal scholar who becomes an ICSID arbitrator does not lose his/her capacity of being a scholar that conveys academic opinions, which might become relevant to the legal analysis undertaken in the resolution of a particular dispute”. Urbaser v. Argentina par 52.

  94. 94.

    Saint-Gobain v. Venezuela par 23.

  95. 95.

    Saint-Gobain v. Venezuela, par 80.

  96. 96.

    In ICS v. Argentina, the deciding authority referred to the IBA Guidelines in his decision to uphold the challenge.

  97. 97.

    Academics have questioned whether this option should be allowed, since it has reasonably been considered that: “from the challenging party’s perspective, its view of the arbitrator in all likelihood has already been tainted by the issue conflict, and the arbitrator’s resignation as counsel thus would be insufficient to cure its concern that the dispute will be decided fairly”. Mouawad (2008), p. 12. An important question that is open to debate in this kind of case refers to the reasons why an arbitrator does not renounce his or her role as arbitrator but decides to sacrifice the other position instead. While little academic interest seems to have been paid to the issue, some authors have indeed manifested clear opinions on the matter, for instance: “Arbitrators have a human incentive to market their services, even if indirectly, by making themselves better known and developing certain reputations (…) This role reversal has a simple explanation: a legitimate desire to earn as much fess as circumstances permit and obtain professional or academic recognition. A desire to earn more money normally does not influence issue conflicts for judges, while that desire can exert psychological pressure and be an important factor for arbitrators”. Diaz-Candia (2012), pp. 7–8.

  98. 98.

    For instance, as a consequence of the decision taken by the court of first instance of the Hague in the Republic of Ghana v. Telekom Malaysia Berhad case, the arbitrator resigned as attorney. The court had stated: “legitimate doubt will exist concerning [the arbitrator’s] impartiality if he does not cease his activities as an attorney in the annulment action of RFCC versus Morocco. The challenge would be upheld if [the arbitrators] should fail to declare expressly and unreservedly within 10 days from the date of the decision that he would resign as attorney in the RFCC versus Morocco case” (reference included in the Decision of the District Court of The Hague, civil law section, 5 November 2004). As a consequence of the challenge in the Grand River v. United States case, the arbitrator ceased to represent or advise parties in two human rights bodies. The ICSID Secretary-General stated: “we concluded that representing or assisting parties in the later set of procedures would be incompatible with simultaneous service as arbitrator in the NAFTA proceeding, and asked that you inform us whether you would continue to represent or assist parties in the non-NAFTA procedures during your service as arbitrator in the present NAFTA proceeding”. Grand River v. United States, 1, par 3.

  99. 99.

    In Glamis v. USA, the defendant state challenged the arbitrator appointed by the investor, as he was concurrently acting as a lawyer in a litigation case against the same state. The arbitrator resigned before a decision on the challenge was made, par 188. In Salini v. Jordan, the decision on jurisdiction does not specify whether the arbitrator resigned due to a concurrent or non-concurrent role as counsel, par. 9.

  100. 100.

    Vito v. Canada (2009), pars 31 y 36.

  101. 101.

    Blue Bank v. Venezuela, pars 67–69. Viewing this decision positively, Daele (2014), Horn (2014), p. 394.

  102. 102.

    Infra, Sect. 3.4.3.

  103. 103.

    Supra, Sect. 3.4.1.

  104. 104.

    It is stated that: “In any event, it does not appear to be clear from the documents in the file that the two cases contain common factual evidence apart from the same context of privatization at the end of the 1990s”. (author’s translation) “En tout état de cause, il n’apparaît pas avéré au vu des pièces versées au dossier que les deux affaires présentent des éléments factuels communs en dehors d’un même contexte de privatisation à la fin des années 1990. Participaciones v. Gabon, par 32.

  105. 105.

    It is affirmed that: “in the present case there is no overlap of facts relevant to the merits of the earlier arbitration and those relevant to the merits of the present case: the overlap merely concerns facts relevant to the interpretation of ArticleVII(2) of the BIT and related legal issues such as the scope of application of the MFN clause”. İçkale v. Turkmenistan, par 119.

  106. 106.

    Warning about the dangers of issue-based interviewing of arbitrators, International Council for Commercial Arbitration (2016), p. 19 (par 55).

  107. 107.

    CC/Devas v. India, par 58.

  108. 108.

    It cannot be ignored that this very same decision rejected the challenge to other co-arbitrator, who had also acted as adjudicator with the challenged arbitrator in two cases.

  109. 109.

    International Council for Commercial Arbitration (2016), p. 64 (par 183).

  110. 110.

    Brubaker (2008), pp. 111–152.

  111. 111.

    International Council for Commercial Arbitration (2016), pp. 58–60.

  112. 112.

    Levine (2015).

  113. 113.

    Respectively, Articles 2, 5.1 and 5.3 of the Code of Conduct contained in the referred texts.

  114. 114.

    Baker McKenzie (2017), p. 8.

  115. 115.

    Claussen (2018).

  116. 116.

    There is a clear example of this criticism in the document presented by more than 100 legal scholars, who called on Congress and the administration to protect democracy and sovereignty in U.S. trade deals. Alliance for Justice (2015).

  117. 117.

    Although it may be thought that the role of court secretary is secondary in principle and only occurs at a very early stage of an individual’s professional career, a recent study ranking the “power brokers” of investment arbitration places an individual who has been court secretary in 38 cases but has never acted as either an arbitrator, legal counsel or expert witness in 20th position. Langford et al. (2017).

  118. 118.

    UNCITRAL (2018), par 79.

  119. 119.

    In Victor Pey Casado v. Chile (2008), a challenge against one of the arbitrators who was also Minister of Foreign Affairs of the Algerian Republic was upheld. Victor Pey Casado v. Chile, par 39.

  120. 120.

    Compañía v. Argentina, pars 217–218.

  121. 121.

    Myers v. Canada, par 28.

  122. 122.

    Reflecting on the multiple hat phenomenon, Ziadé (2009).

  123. 123.

    A devastating report in this sense is: Eberhardt and Olivet (2012).

  124. 124.

    When focusing on the reforming of ISDS by replacing the existing system with other dispute resolution mechanisms the report suggests: “judges, unlike arbitrators in the present regime, would not be permitted to continue serving as counsel or expert witnesses”. UNCTAD (2015), p. 152.

  125. 125.

    Situations such as cross-appointments are also called into question by the same token. Cross-appointments have been defined thus: “Mr. X, as counsel in one case, agrees to appoint Ms. Y as arbitrator, and in return Ms. Y, when acting as counsel, will appoint Mr. X as arbitrator”. Bernasconi-Osterwalder et al. (2010), p. 4.

  126. 126.

    Claiming that this practice should be banned (Columbia Center on Sustainable Investment) or at least reduced to a minimum, Law Council of Australia (2017), p. 6.

  127. 127.

    US arbitrator Thomas Buergenthal, a former ICJ judge, stated that “arbitrators and counsel should be required to be one or the other”, in order to “ensure that an arbitrator will not be tempted, consciously or unconsciously, to seek to obtain a result in an arbitral decision that might advance the interest of a client in a case he or she is handling as counsel”. Perry (2012), p. 43. Sands has said: “it is possible to recognize the difficulty that may arise if a lawyer spends a morning drafting an arbitral award that addresses a contentious legal issue, and then in the afternoon as counsel in a different case drafts a pleading making arguments on the same legal issue”. Sands (2012), pp. 31–32. Fernández-Armesto stated: “if self-policing does not work, in my opinion eventually there will be recommendations and eventually even outright prohibitions, following the precedent of CAS ”. Fernández-Armesto (2012). Another trend in the arbitral world is for senior “multiple hatters” to leave their big law firms and work solely as independent arbitrators, with the aim of minimising conflicts of interest.

  128. 128.

    Derains and Gharavi (2017), pp. 5–6.

  129. 129.

    Park (2009), p. 635.

  130. 130.

    Shetreet (2003), pp. 127–161.

  131. 131.

    Giorgetti (2015), pp. 7–13.

  132. 132.

    Article 17. ICJ (1946).

  133. 133.

    Giorgetti (2015), pp. 7–9.

  134. 134.

    Article16. ICJ (1946).

  135. 135.

    Giorgetti (2015), p. 11.

  136. 136.

    Bernasconi-Osterwalder and Brauch (2017).

  137. 137.

    A lively debate was generated on this matter in the OGEMID framework on 28 and 29 of November 2017.

  138. 138.

    Article 5 of the Code of Conduct proclaims: “Other activities: 1. Members who wish to take part in an external activity shall request prior authorisation from the Court or Tribunal of which they are a Member. They shall undertake, however, to comply with their obligation to be available so as to devote themselves fully to the performance of their duties. 2. Members may be authorised to participate in teaching activities, conferences, seminars or symposia, but may not receive any uncustomary financial remuneration for doing so. 3. Members may also be authorised to engage in activities of an academic nature and to assume unremunerated honorary duties in foundations or similar bodies in the cultural, artistic, social, sporting or charitable fields and in teaching or research establishments. In that connection, they shall undertake not to engage in any managerial or administrative activities which might compromise their independence or their availability or which might give rise to a conflict of interest. The expression ‘foundations or similar bodies’ means non-profit-making establishments or associations which carry out activities in the general interest in the fields referred to”. CJEU (2007).

  139. 139.

    Current Article 8 of the 2016 Code states: “External activities: 1. Members shall undertake to comply in all circumstances with their obligation to be available so as to devote themselves fully to the performance of their duties. 2. Members may engage in external activities only if they are compatible with their duties arising under Articles 2 to 4, 6 and 7 of this Code of Conduct. Without prejudice to the derogation provided for in the second paragraph of Article 4 of the Statute of the Court of Justice of the European Union, engaging in any professional activity other than that resulting from the performance of their duties shall be incompatible with the duties set out in this Code of Conduct. 3. Members may be authorised to engage in external activities that are closely related to the performance of their duties. In that context: — they may be authorised to represent the Institution or the Court or Tribunal of which they are a Member at ceremonies and official events, — they may be authorised to participate in activities of European interest that relate, inter alia, to the dissemination of EU law and to dialogue with national and international courts or tribunals. In this respect, Members may be authorised to participate in teaching activities, conferences, seminars or symposia. Only participation in teaching activities may give rise to remuneration in accordance with the rules of the teaching establishment concerned. The Members’ activities authorised by the Court or Tribunal of which they are a Member shall be published on the Institution’s website after the activity has taken place. 4. In addition, Members may be authorised to assume unremunerated duties in foundations or similar bodies in the legal, cultural, artistic, social, sporting or charitable fields and in teaching or research establishments. In that connection, they shall undertake not to engage in any managerial or administrative activities which might compromise their independence or their availability or which might give rise to a conflict of interest. The expression ‘foundations or similar bodies’ means not-for-profit establishments or associations which carry out activities in the general interest in the fields referred to. 5. Members who wish to take part in an activity covered by paragraphs 3 and 4 shall request prior authorisation from the Court or Tribunal of which they are a Member, by using a specific form. 6. Publications and the resulting copyright royalties shall be allowed without prior authorization”. CJEU (2016)

  140. 140.

    VII: “Additional activity. Judges may not engage in any additional activity except insofar as this is compatible with independence, impartiality and the demands of their full-time office. They shall declare any additional activity to the President of the Court, as provided for in Rule 4 of the Rules of Court”. ECHR (2008).

  141. 141.

    Articles 4.11 and 4.12 of the Bangalore Principles: “Subject to the proper performance of judicial duties, a judge may: 4.11.1 write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; 4.11.2 appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; 4.11.3 serve as a member of an official body, or other government commission, committee or advisory body, if such membership is not inconsistent with the perceived impartiality and political neutrality of a judge; or 4.11.4 engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties. 4.12. A judge shall not practise law whilst the holder of judicial office”. Judicial Group on Strengthening Judicial Integrity (2002).

  142. 142.

    Article 8 of the Burgh House Principles: “Extra-judicial activity. 8.1. Judges shall not engage in any extra-judicial activity that is incompatible with their judicial function or the efficient and timely functioning of the court of which they are members, or that may affect or may reasonably appear to affect their independence or impartiality. 8.2. Judges shall not exercise any political function. 8.3. Each court should establish an appropriate mechanism to give guidance to judges in relation to extra-judicial activities, and to ensure that appropriate means exist for parties to proceedings to raise any concerns”. International Courts and Tribunals, in association with the Project on International Courts and Tribunals (2004).

  143. 143.

    Article 3 of the Rhodes Resolution: “2. They may not exercise political or administrative functions, or act as agents, counsel or advocates before any courts and tribunals. 3. Should judges engage in any other external activity, such as teaching or arbitration, if not prohibited by their statute, they shall afford absolute priority to the work of the international court or tribunal to which they belong. Moreover, they may not engage in any activity capable of impinging on their independence or susceptible of raising doubts on their impartiality in a given case. 4. It is undesirable for judges serving in courts and tribunals with a heavy workload to engage in arbitrations or in substantial teaching activities. 5. Special procedures should be set up within every international court or tribunal in order to regulate such matters. In any case, judges shall first request the authorization of the president of the court of which they are members. The president will decide, first and foremost, according to the interests and the needs of the international court or tribunal. Similar procedures are required when it appears that there is a risk of incompatibility in a particular case. 6. A former judge should not act as agent, counsel or advocate before the court or tribunal of which that judge has been a member during at least three years following the end of his/her term”. Institute of International Law (2011).

  144. 144.

    CAS (2010).

  145. 145.

    Paulsson (2010), p. 344.

  146. 146.

    The 2018 Netherlands draft model BIT addresses this issue, by stating in its Article 20.5 that: “Members of the Tribunal shall not act as legal counsel or shall not have acted as legal counsel for the last five years in investment disputes under this or any other international agreement”. Netherlands (2018). The 2012 Southern African Development Community (SADC) Model Bilateral Investment Treaty also address this topic, stating that: “for greater certainty, the above requirements include the requirement not to act concurrently as counsel in another actual or potential treaty-based arbitration involving a foreign investor and a State”. SADC (2012).

  147. 147.

    Infra, Chap. 4.

  148. 148.

    EU-Vietnam FTA 12.13 and 13.13; 9.11 and 10.11 TTIP; and JEFTA- 8.11. This text was inspired by Article 17 of the WTO DSU—Appellate Review-Standing Appellate Body: “All persons serving on the Appellate Body shall be available at all times and on short notice, and shall stay abreast of dispute settlement activities and other relevant activities of the WTO. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest.” WTO (1994).

  149. 149.

    Articles 8.27.11. CETA (2016).

  150. 150.

    Article 3.9.15 and 3.10.13 EU-Singapore IPA (2018).

  151. 151.

    Articles 12.17 and 13.17. EU-Vietnam FTA (2016).

  152. 152.

    Articles 9.15 and 10.14. TTIP (2016).

  153. 153.

    Articles 8.15 (tribunal of first instance and appeal tribunal). EU proposal, 14th round. JEFTA (2016).

  154. 154.

    Article 8.30 Ethics. CETA (2016).

  155. 155.

    Article 14.1. EU-Vietnam FTA (2016).

  156. 156.

    Article 11 of the Investment Chapter. TTIP (2016).

  157. 157.

    EU proposal, 14th round. Article 8.1 (Ethics). JEFTA (2016).

  158. 158.

    Malmström (2015).

  159. 159.

    Howse (2015). The same author affirms: “Perhaps one of the most egregious ethical lapses in the existing system of investor-state arbitration is the tolerance of arbitrators who at the same time act as counsel in investor-state disputes. Many ISDS insiders see this as entirely normal and appropriate. I find it shocking. It is true that there is no stare decisis as a formal matter in ISDS and this is a problem (…) But how is it that an arbitrator who is in active practice can avoid being perceived, in the legal interpretation made as an arbitrator, as swayed either consciously or a subconsciously, by a wanting to create a jurisprudential universe on balance more rather than less favourable to the clients they continue to represent as counsel in other disputes? The perception of non-impartiality would have to be especially acute where an arbitrator is deciding a specific legal issue in one case have another case as counsel where how the very same legal issue is decided has high stakes for their client.” Howse (last accessed in June 2018), pp. 10–11.

  160. 160.

    Van Harten (2016). Footnote 6 to Article 11 of the TTIP has also been controversial (“For greater certainty, this does not imply that persons who are government officials or receive an income from the government, but who are otherwise independent of the government, are ineligible”). Dealing with this question, the Investment Treaty Working Group: “This provision raises questions about independence and the objective perception of bias, it must be read with the TTIP Code of Conduct which contains a specific provision on independence including “relationships” and financial interest”. Investment Treaty Working Group: Task force report on the Investment Court System Proposal, Pag. 24. http://apps.americanbar.org/dch/thedl.cfm?filename=/IC730000/newsletterpubs/DiscussionPaper101416.pdf.

  161. 161.

    That is, the current text would in principle allow judges to remain as arbitrators both in investment and commercial cases. Dias Simoes (2018). It has been stated by the Investment Treaty Working Group that: “Investment Court members may also engage in potentially troubling conduct if they sit as arbitrators. In such a circumstance, the member may still have an interest in “siding” with one party for additional appointments to tribunals or advisory work taking place outside of the investment court. The context for the consideration of bias regarding members of the Investment Court must be considered in its entirety and not solely regarding the Investment Court”. Investment Treaty Working Group (2016), p. 47.

  162. 162.

    Ridderhof (2016).

  163. 163.

    Focusing on the 2014 version of TTIP, some academics have interpreted that the ethics provision prohibits some of the multiple scenarios in which the judge/member of the court is acting on a part-time basis (as opposed to a situation in which he/she receives a regular salary because of working full-time). This approach has led to the following statement: “While the general, default rule (judges appointed on a part-time regime, prohibited from acting as counsel in other investment arbitrations [or, in other texts, prohibited also from acting as]) can limit the number of professionals interested in joining the investment court, the full-time option requires that they make an ever harder choice – judge at the investment court or nothing”. Dias Simoes (2018). Although this interpretation is plausible, the aforementioned ICJ practice in this area raises the question of whether the EU legislator would in fact be willing to make the “default rule” also applicable to full-time judges.

  164. 164.

    In this sense, a series of precautions taken into account in the international judicial context may be taken into account in the context of international investments. For example, point 17.3 of the Mont Scopus International Standards states that: “each court should establish an appropriate mechanism to give guidance to judges in relation to extra-judicial activities, and to ensure that appropriate means exist for parties to proceedings to raise any concerns”. International Association of Judicial Independence and World Peace (2008).

  165. 165.

    Article 9 of the 2016 states: “If in doubt as to the application of this article, a former Member may contact the President of the Court of Justice, who shall take a decision after obtaining the opinion of the Committee provided for in Article 10”. CJEU (2016).

  166. 166.

    Following the TTIP proposal, this monthly retainer fee will be around 2,000 euros per month (one third of the retainer fee for WTO Appellate Body Members). Titi (2017). Criticising the relatively low amount proposed for professional retainers and the severe system of incompatibility. EFILA (2016), pp. 55–56.

  167. 167.

    According to recent studies the individual fee per investment arbitrator amounts to USD 426,000 per case on average. Bernasconi-Osterwalder and Brauch (2017), p. 3. With this figures in mind, EFILA has declared that: “the opportunity of sitting on an investment appellate system with few cases to hear, comes at a high cost of being required at the same time to forfeit other professional opportunities. It is not unreasonable to suppose that the brightest and most experienced lawyers, who currently serve as counsel and arbitrators in investment disputes, could turn down an appointment to a less-than-busy appellate body, which would force them to abandon their profitable practice altogether. It is useful to recall that the retainer fee for WTO Appellate Body members amounts approximately to 7,000 Euros per month, a much lower sum than the average monthly income of top lawyers.” EFILA (2016), pp. 55–56.

  168. 168.

    It has been argued that: “Even if such arbitrators [who meet the stringent qualifications for members] could be persuaded, they almost all have full schedules for the next 3–5 years already set out, so would be hard pressed to assume the obligation to reserve time to hear CETA cases on an on-call basis. Academics can, and probably happily would, take on this role. However, it is problematic to only want, or cultivate conditions amenable, to academics serving as arbitrators? International investment law is a complex field, and practical experience arguing and arbitrating such cases is key, in additional to a dual scholar-practitioner or solely academic experience.” Sardinha (2018). The author might also contemplate the possibility that, apart from arbitrators, other recognized professionals also have full schedules for the next 3–5 years. In any case, the crucial issue is whether these individuals are willing to forgo such commitments in order to provide an adequate service in courts like the MIC.

  169. 169.

    Practice Direction VII: “The Court considers that it is not in the interest of the sound administration of justice that a person sit [sic] as judge ad hoc in one case who is also acting or has recently acted as agent, counsel or advocate in another case before the Court. Accordingly, parties, when choosing a judge ad hoc pursuant to Article 31 of the Statute and Article 35 of the Rules of Court, should refrain from nominating persons who are acting as agent, counsel or advocate in another case before the Court or have acted in that capacity in the three years preceding the date of the nomination. Furthermore, parties should likewise refrain from designating as agent, counsel or advocate in a case before the Court a person who sits as judge ad hoc in another case before the Court.” ICJ (2013).

  170. 170.

    This question has also been approached from the legal counsel’s perspective in documents such as the Hague Principles on Ethical Standardsfor Counsel Appearing before International Courts and Tribunals, which states that: “The personal interests of counsel create an impermissible conflict where he or she: 4.3.4 has served as a judge or other officer of the international court or tribunal within the previous 3 years or such other period as the court or tribunal may establish by its rules; or 4.3.5 has previously dealt with the case in a judicial capacity”. ILA Study Group on the Practice and Procedure of International Tribunals (2010).

  171. 171.

    Practice Direction VIII. ICJ (2013).

  172. 172.

    Article 9 CJEU (2016).

  173. 173.

    Study Group (2004).

  174. 174.

    French Government (2015).

  175. 175.

    EU-Singapore IPA (2018), the former EUSFTA (2015), JEFTA (2016), and TTIP (2016).

  176. 176.

    Corporate Europe Observatory (2016), p. 7.

  177. 177.

    Ibid, 26.

  178. 178.

    Connected with this issue to some extent, the question of renewable or non-renewable appointments is also currently being debated. The majority of the prefers the second option, in the sense that: “the non-renewable factor will maintain the independence of the judges, as there is little incentive to be partial to either side when there is no way to extend a judge’s tenure and no way to remove a judge in retaliation”. Howard (2018), p. 46. In this sense, this approach coincides with the following scholarly conclusion, which warns of the need for making trade-offs among the following three values: “it is not possible, either in principle or in practice, to maximize simultaneously the three fundamental values of judicial accountability, judicial transparency, and judicial independence (…) For these reasons, we endorse the approach taken by the ECtHR and the ICC, which combines the high transparency of open dissent and the high independence of secure judges with the acceptable decrease in judicial accountability associated with non-renewable terms”. Dunoff and Pollack (2017), pp. 268 and 275.

  179. 179.

    The Guidelines state: “A former Appellate Body Member shall not: a) be involved as an adviser or panelist in any dispute or matter the same as one that was before the Appellate Body during his or her term of office as an Appellate Body Member. A former Appellate Body Member may, however, accept appointment as an arbitrator in an arbitration under Article 21.3(c) of the DSU in respect of any dispute; b) for a period of three years following the end of his or her term of office, attend the oral hearing in any appeal before the Appellate Body as a member of a delegation of a participant or third participant; c) for a period of two years following the end of his or her term of office, accept appointment as a panelist in any WTO dispute.” WTO (2014). This text also offers guidelines regarding former intern and former member of staff of the Appellate Body Secretariat.

  180. 180.

    Against temporary prohibitions and vesting periods in investment arbitration, Cleis (2017), p. 204.

  181. 181.

    Recommendations of the Spanish Arbitration Club (CEA) regarding the Independence and Impartiality of the Arbitrators: “Obligation to maintain independence and impartiality. Arbitrators shall maintain their independence and impartiality and neither they nor their offices shall accept professional assignments from the parties, while they are fulfilling their s functions and for a reasonable time after the termination.”(author’s translation). “Obligación de mantener la independencia e imparcialidad. Todo árbitro mantendrá su independencia e imparcialidad y ni él ni su despacho aceptarán encargos profesionales de las partes, en tanto no haya cesado en sus funciones y durante un tiempo razonable tras el cese”. CEA (last accessed in June 2018).

  182. 182.

    Baker McKenzie (2017), p. 8.

  183. 183.

    ICJ (2013).

  184. 184.

    CJEU (2016)

  185. 185.

    Study Group (2004).

  186. 186.

    The referred French proposal extends this period to 5 years but limits it to “dispute/litigation/lawsuit related to similar facts” French Government (2015).

  187. 187.

    Ziadé (2009), p. 64; Hwang and Lim (2011), p. 32.

  188. 188.

    Mann (2005), p. 6.

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    1. Tenured Professor (Profesora Titular) at the Law School, University of Zaragoza, Zaragoza, Spain

      Katia Fach Gómez

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    1. Katia Fach Gómez
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    Fach Gómez, K. (2019). The Duty of Disclosure and Conflicts of Interest in Investment Arbitration Disputes. In: Key Duties of International Investment Arbitrators. Springer, Cham. https://doi.org/10.1007/978-3-319-98128-4_3

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    • DOI: https://doi.org/10.1007/978-3-319-98128-4_3

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