Skip to main content
main-content

Über dieses Buch

This book critically analyses how arbitration cases, institutional rules and emerging codes of conduct in the international arbitration sector​ have ​dealt with​ a series of​ key​ arbitrator duties to date. In addition, it ​offers a range of feasible and well-grounded proposals regarding ​investment arbitrators’ duties in the future. The following aspects are examined in depth:

the duty of disclosure

the duty to investigate​

the duty of diligence​ and integrity​, which in turn may be divided into temporal availability, a non-delegation of responsibilities, and adhering to appropriate behaviour​

the duty of confidentiality, and

other duties such as monitoring arbitration costs, or continuous training​.

Investment arbitration is currently undergoing sweeping changes. The EU proposal to create a Multilateral Investment Court incorporates a number of ground-breaking developments with regard to arbitrators. Whether this new model of permanent “members of the court” will ever become a reality, or whether the classical ex-parte arbitrator system will manage to retain its dominance in the investment arbitration milieu, this book is based on the assumption that there is a current need to re-examine and rethink the main duties of investment arbitrators.

Apart from being the first monograph to analyse these​ duties in detail, the book will spark a crucial debate among international scholars and practitioners. It is essential to identify arbitrators’ duties and find consensus on how they should be reshaped in the near future, so that these central figures in investment arbitration can reinforce the legitimacy of a system that is currently in crisis.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction. A Transnational Study of Legal and Ethical Dilemmas

Before examining the contours and content of some of the key duties of international investment arbitrators in detail, this introductory chapter aims to present an overview of the current status quo of investment arbitration vis-à-vis its adjudicators. Attention is specifically focused on EU intervention in the matter and the ways in which its novel proposals affect the contemporary figure of the investment arbitrator. The incorporation of Codes of conduct into recent EU FTAs and the interest in ethics in international arbitration shown by UNCITRAL Working Group III are two examples of the topic’s increasing importance. While still a work in progress, the legal area dealing with investment arbitrators’ duties ultimately needs to provide answers to a series of cross-cutting issues that are outlined in this chapter and developed throughout the book.
Katia Fach Gómez

Chapter 2. The Duty of Disclosure: An Overview

The duty of disclosure that falls to investment arbitrators currently presents a significant number of contentious aspects. Many ICSID challenges have addressed issues such as the formal aspects and content of the statement of impartiality and independence, as well as the scope of this duty and the applicable disclosure standards. A detailed analysis of the decisions resulting from these challenges leads to the conclusion that the unchallenged co-arbitrators, who are in most cases responsible for settling challenges brought by parties, may have sometimes erred on the side of leniency when judging their colleagues’ actions or omissions in connection with the duty of disclosure. In practice, the very wording of ICSID provisions and a sense of endogamy among the somewhat limited group of arbitrators are two factors that have prevented breaches of this duty from being sanctioned with disqualification. This chapter sets out and argues for a series of regulatory reforms that seek a firmer reshaping of the profile of the duty of disclosure within the context of investment arbitration (e.g., improving formal aspects of the statement of impartiality and independence and making changes to the drafting of ICSID Rule 6(2)b, as well as various suggestions concerning the timing, celerity and addressees of the duty of disclosure). The chapter also contains detailed reflections on two closely connected issues: the importance of having access to a reliable CV for each investment arbitrator and the arbitrators’ duty to investigate. A recurrent underlying theme is the role that traditional arbitral institutions or new stakeholders such as the Multilateral Investment Court (MIC) should adopt vis-à-vis the adjudicators’ duty of disclosure in the investment milieu.
Katia Fach Gómez

Chapter 3. The Duty of Disclosure and Conflicts of Interest in Investment Arbitration Disputes

This chapter offers some reflections on conflicts of interest in the international investment milieu and their relationship with the duty of disclosure. Special attention is paid to IBA Guidelines on Conflicts of Interest in International Arbitration, and its present and future relevance in the investment context. The chapter also focuses on three highly controversial issues of the contemporary ISDS system: repeat appointment, issue conflict and multiple hatting. The final aim of this Chapter is to put forward various proposals on the specific content that should be attributed to these issues in contexts such as ICSID, the ICS, and a possible MIC.
Katia Fach Gómez

Chapter 4. The Duty of Personal Diligence and Integrity

This chapter aims to define the contours of the duty of personal diligence and integrity. This duty is highly complex, and this chapter deals with three different facets of this duty individually: non-delegation of responsibilities; time-related availability, and appropriate behaviour. Each section of this chapter examines the way in which these concepts have been shaped, in both commercial arbitration and in other contexts, such as the judicial, when necessary. The final aim is to put forward practical ideas on the specific content that should be attributed to these notions in the investment arbitration environment. It is also argued that these issues will need to be defined more clearly in the future, in contexts such as ICSID, the ICS, and a possible MIC.
Katia Fach Gómez

Chapter 5. The Duty of Confidentiality

The duty of confidentiality of investment adjudicators is currently dealt with in legal spheres such as ICSID or the ICS. A proper understanding of contemporary facets of this duty requires giving appropriate consideration to existing provisions on transparency vis-à-vis the public. While it falls to investment adjudicators to police the correct application of transparency provisions, these adjudicators also retain formal ties to confidentiality provisions, whose wording sometimes has its origins in other legal sectors such as commercial arbitration or the national judicial systems. There are specific moments in investment arbitration proceedings that are clearly under the investment adjudicator’s control (tribunal deliberations, etc.). In this kind of situation, the existence of a duty of confidentiality attributable to the investment adjudicator makes absolute sense. Nevertheless, if the confidentiality provisions in the contemporary investment context are to be correctly interpreted, the importance of notions such as “public information” needs to be ascertained, which may raise the question of whether investment adjudicators’ duty of confidentiality is really as broad in practice as currently supposed.
Katia Fach Gómez

Chapter 6. Other Duties. Control of Arbitration Costs and Continuous Training

Arbitration practice and the concerns of the different stakeholders show that some of the adjudicators’ duties have not been sufficiently delineated and require greater exploration. This chapter covers two of these duties by way of example: the arbitrators’ duty to control arbitration costs and their duty of continuous training. This analysis aims at setting out the current situation in the investment sphere and at reflecting on how future initiatives such as the MIC may take a step forward in the way these and other duties are visualised.
Katia Fach Gómez

Chapter 7. Conclusion. A New Code of Conduct for Present and Future Investment Adjudicators

The practice of investment arbitration shows that dilemmas closely related to the figure of the investment arbitrator frequently arise in the course of arbitral proceedings. This book analyses and systematizes such situations, which are highly controversial at both legal and ethical level, and links them with some of the duties that are usually attributed to investment arbitrators. There is a strong transnational element in this study, since the origins of the institution of international investment arbitration itself and many of the texts dealing with investment arbitrators’ duties are transnational in nature.
Katia Fach Gómez

Backmatter

Weitere Informationen

Premium Partner

BranchenIndex Online

Die B2B-Firmensuche für Industrie und Wirtschaft: Kostenfrei in Firmenprofilen nach Lieferanten, Herstellern, Dienstleistern und Händlern recherchieren.

Whitepaper

- ANZEIGE -

Voraussetzungen für die wirtschaftliche additive Fertigung

Viele Unternehmen stellen die technische Umsetzbarkeit oder die Wirtschaftlichkeit additiv gefertigter Produkte in Frage und zögern bei der Anwendung. Mit einer neuen Denkweise führt die additive Fertigung jedoch zu höherer Wirtschaftlichkeit und Vorteilen im Wettbewerb, wie Kegelmann Technik in diesem Beitrag beschreibt.
Jetzt gratis downloaden!

Bildnachweise