Codes of conduct for international arbitrators provide ethical guidelines and professional standards that arbitrators must adhere to when conducting international arbitration proceedings. These codes aim at establishing ethical and professional standards for arbitrators to ensure fairness, impartiality, and integrity in the arbitration process.
The most recent development in this matter was the announcement by Shane Spelliscy, Chair of the United Nations Commission on International Trade Law (“UNCITRAL”) Working Group III (“WGIII”), at the 45th Session of the WGIII on March 31, 2023, that a workable compromise had been reached on the issue of how to regulate double hatting[1]. Consequently, Mr. Spelliscy announced that an agreement was reached on a text of the Code of Conduct for Arbitrators in Investor-State Dispute Settlement (“ISDS”)[2] to be presented for final approval at the UNCITRAL Commission in July 2023.[3] This code of conduct had been first proposed in 2019 and it focuses heavily on disclosures obligations by arbitrators.
This is a significant announcement, as several other prominent international arbitration centers have also continuously worked on similar codes of conduct and/or guidelines. Accordingly, while different institutions and organizations may have their specific codes of conduct, there are several common principles that are generally included:
- Independence and Impartiality
- Integrity and Fairness
- Disclosure of Information
- Competence and Diligence
- Confidentiality
- Transparency and Disclosure
- Respect for Due Process
- Compliance with Applicable Laws and Rules
Of course, the codes of different arbitration institutions and organizations may include additional or more specific provisions tailored to the particularities of the institution or organization (for example in the case of ICSID due to the nature of the disputes before such institution). Additionally, some international arbitration guidelines, such as the International Bar Association (“IBA”) Guidelines on Conflicts of Interest in International Arbitration, provide detailed guidance on managing conflicts of interest and disclosure obligations for arbitrators[4]. These guidelines are widely recognized and often referenced in international arbitration practice.
Other important centers for international arbitration which have taken several initiatives to address and promote codes of conduct for their arbitrators include the International Chamber of Commerce (“ICC”) and the London Court of International Arbitration (“LCIA”). The ICC, for example, incorporates ethical and professional standards in its own standard Rules, but has adopted additional rules and guidelines such as its 2016 Guidance Note on Conflict Disclosures by Arbitrators[5] and the 2017 ICC Arbitrator Statement Acceptance, Availability, Impartiality and Independence form[6]. Similarly, the LCIA incorporates ethical and professional standards in its own Arbitration Rules (specifically, but not limited to, Rules 5, 18.5 and 18.6 & Annex), in addition to publishing the 2017 LCIA Notes for Arbitrators[7].
It is noteworthy that the evolution of codes of conduct in international arbitration will be influenced by the evolving needs and expectations of the arbitration community, as well as legal developments and societal trends. For example, current challenges related to codes of conduct for international arbitrators include challenges in diversity and inclusion within arbitral tribunals and emerging ethical issues with regard to third-party funding, cybersecurity, or the use of artificial intelligence. The specifics of future codes of conduct will depend on the actions and initiatives taken by arbitration institutions, professional organizations, and stakeholders in the field to address these and other challenges.
[1] “Double hatting” is commonly used to refer to the practice of arbitrators who also carry on other activities such as counsel or expert witness. This means that someone who acts as arbitrator in some proceedings acts “the subsequent day” (so to say) in other proceedings for example as counsel or expert witness, possibly even in front of arbitrators who have been acting as Counsel before him in the above referred to arbitral proceedings.
[2] Full text of the draft is available at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/draft_code_of_conduct_for_arb_advance_copy.pdf
[3] See “Working Group III: Investor-State Dispute Settlement Reform”, available at: https://uncitral.un.org/en/working_groups/3/investor-state
[4] Full text of the IBA Guidelines on Conflicts of Interest in International Arbitration available at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ibanet.org/MediaHandler?id=e2fe5e72-eb14-4bba-b10d-d33dafee8918.
[5] See “2016 Guidance Note on Conflict Disclosures” available at: https://iccwbo.org/news-publications/news/icc-court-adopts-guidance-note-on-conflict-disclosures-by-arbitrators/
[6] See 2017 ICC Arbitrator Statement Acceptance, Availability, Impartiality and Independence form available at: https://iccwbo.org/news-publications/arbitration-adr-rules-and-tools/icc-arbitrator-statement-acceptance-availability-impartiality-independence-form/#single-hero-document
[7] See LCIA Notes for Arbitrators available at: https://www.lcia.org/adr-services/lcia-notes-for-arbitrators.aspx#:~:text=Under%20Article%205.4%20of%20the,to%20their%20impartiality%20or%20independence.