Conflicts or Opportunities? Arbitrators' Previous Cases and Their Future Appointments
The debate surrounding arbitrators, their appointment and potential conflicts, has sparked an intense discussion in UNCITRAL Working Group III on Investor-State Dispute Settlement (ISDS) Reform. Certain concerns with arbitrators, and in particular with their independence and impartiality, were identified at the early stages of the discussions in this Working Group, including issues related to conflicts of interests, double-hatting, issue conflicts, the appointment mechanism, accountability of arbitrators, etc. Later in the process, UNCITRAL and ICSID joined forces to put forward a draft Code of Conduct for Adjudicators in International Investment Disputes, at the time of writing in its second draft.
This article approaches this debate from the angle of perceived - or misperceived - predisposition of potential arbitrators with respect to particular legal (and/or factual issues) in the dispute.
"No baggage - there was the secret of existence."
Robert Louis Stevenson, The Wrecker (1892)