Dr Vanina Sucharitkul, Partner at Rajah & Tann Singapore, has contributed an article titled “The UNCITRAL Code of Conduct for Arbitrators in International Investment Disputes: Striking the Right Balance?” to the Asian International Arbitration Journal (Volume 21, Issue 2) (“AIAJ“).
The independence and impartiality of arbitrators are widely accepted as being of paramount importance both to disputing parties, as users of the system, and the legitimacy of investment arbitration as a whole. To that end, the UNCITRAL Code of Conduct for Arbitrators in International Investment Disputes (“Code“) addresses two issues impacting on arbitrator independence and impartiality, namely (i) the regulation of the “double-hatting” phenomenon, where individuals serve concurrently as arbitrators and counsel in separate proceedings; and (ii) disclosure obligations designed to meet concerns of partiality and bias.
The article traces the background and rationale for the Code, then examines how the Code’s provisions relating to the two issues of “double-hatting” and disclosure requirements have evolved. Finally, it critically evaluates the Code’s practical impact with a particular focus on its implications for the promotion of diversity, party autonomy and sustainability of the legitimacy of investor-state dispute settlement (“ISDS“), including a potential chilling effect on the diversity and sustainability of the arbitrator pool. It also considers two major constraints on the Code’s effectiveness: (i) its reliance on voluntary adoption by parties, and (ii) the lack of robust enforcement mechanisms. Ultimately, while the Code marks an important step in ISDS reform, its impact will hinge on integration into binding treaty frameworks, and the political will of states and stakeholders to ensure meaningful enforcement.
Published in collaboration with the Singapore International Arbitration Centre (SIAC), the AIAJ is a leading journal on issues in international commercial arbitration in the Asia-Pacific region. Each issue contains a variety of articles such as analytical commentaries on international arbitration developments, and updates on recent case law, legislative enactments and arbitral awards throughout Asia.
To read the full article, click here.
Find out more about our International Arbitration Practice here.
Visit Arbitration Asia for insights from our thought leaders across Asia concerning arbitration and other alternative dispute resolution mechanisms, ranging from legal and case law developments to market updates and much more.
Disclaimer
Rajah & Tann Asia is a network of member firms with local legal practices in Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. Our Asian network also includes our regional office in China as well as regional desks focused on Brunei, Japan and South Asia. Member firms are independently constituted and regulated in accordance with relevant local requirements.
The contents of this publication are owned by Rajah & Tann Asia together with each of its member firms and are subject to all relevant protection (including but not limited to copyright protection) under the laws of each of the countries where the member firm operates and, through international treaties, other countries. No part of this publication may be reproduced, licensed, sold, published, transmitted, modified, adapted, publicly displayed, broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save as permitted herein) without the prior written permission of Rajah & Tann Asia or its respective member firms.
Please note also that whilst the information in this publication is correct to the best of our knowledge and belief at the time of writing, it is only intended to provide a general guide to the subject matter and should not be treated as legal advice or a substitute for specific professional advice for any particular course of action as such information may not suit your specific business and operational requirements. You should seek legal advice for your specific situation. In addition, the information in this publication does not create any relationship, whether legally binding or otherwise. Rajah & Tann Asia and its member firms do not accept, and fully disclaim, responsibility for any loss or damage which may result from accessing or relying on the information in this publication.
