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Independence and Impartiality of Arbitrators in Investor-State Arbitration: Perceived Problems and Possible Solutions

Published on April 4, 2019        Author: 

Editors’ Note:  This is the latest post in our ongoing series of posts (see introduction here, first post on costs here, second post on duration of proceedings here, third post on the diversity deficit in investment arbitration here) from individual members of the Academic Forum of the UNCITRAL Working Group III (UN WG III) on Investor-State Dispute Settlement Reform, in parallel with the ongoing UN WG III sessions taking place this week in New York.  The series features summaries of more detailed concept papers prepared by various working groups of the Academic Forum.  This post summarizes a more detailed concept paper prepared by members of Academic Forum Working Group 6 (Steven Ratner as chair, members are Jeffrey Dunoff, Shotaro Hamamoto, Luke Nottage, Stephan Schill, and Michael Waibel).

Introduction

The principle that adjudicators must be independent and impartial is at the core of any adjudicatory mechanism, whether domestic or international, and is a basic principle of the rule of law. It plays an important role in Investor-State arbitration (ISA), where arbitrators typically sit for a short amount of time in specific cases and are not career judges.

The requirements that arbitrators be independent and impartial are usually found in the applicable rules of procedures to the arbitration, including UNCITRAL Arbitration Rules (2010) and the ICSID Convention.

However, concerns over the possible or perceived lack of independence and impartiality of arbitrators have been raised by diverse ISA stakeholders, including parties and the general public. In this context, this post first identifies the issues that may rise concerns about the independence and impartiality of ISA arbitrators. It then explains how some of the reform proposals under possible consideration at UNCITRAL would or would not solve the identified problems.

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