The UN Commission on International Trade Law (UNCITRAL) has approved a Code of Conduct for arbitrators in international investment arbitration (available here). The Code is intended to apply to members of an ICSID arbitral tribunal or ad hoc committee, and to candidates for such roles, and also to apply to other investor-state arbitrations. The precise mechanics by which this will be achieved is unclear, and the commentary to the Code suggests that it may come to be incorporated into the UNCITRAL Arbitral Rules. Parties are free to agree that the Code should apply in their arbitrations and it is likely that this will become common.
The Code of Conduct is a mixture of codifying existing best practice, such as a prohibition on ex parte communications outside the remit of an initial appointment, and a requirement for independence and impartiality.
The Code also, however, contains a number of far-reaching new rules, in relation to so-called “double-hatting” where the same person acts as both arbitrator and party-appointed counsel in relation to the same actions by particular states or the same treaty provisions; in relation to the a requirement to maintain an arbitration’s confidentiality; and requirements for arbitrator disclosure.