Comparing Arbitrator Standards of Conduct in International Commercial Trade Investment Disputes

By García-Bolívar, Omar E. | Dispute Resolution Journal, November-January 2005 | Go to article overview

Comparing Arbitrator Standards of Conduct in International Commercial Trade Investment Disputes


García-Bolívar, Omar E., Dispute Resolution Journal


Since the success of international arbitration, whether the proceedings involve a commercial, investment and trade dispute, depends in large part on the quality and conduct of the arbitrators who hear the disputes. Thus, there is a great need for arbitrators to avoid ethical conflicts and disclose actual and potential conflicts of interest is of great importance In this article, the author examines the disclosure and qualification requirements for international arbitrators in the rules of the major international arbitration institutions, ethical codes, NAFTA, the WTO and rules promulgated by the International Bar Association.

Parties to international disputes use arbitration because they see it as an alternative to an unreliable judicial system, or because they think it is faster than litigation or affords privacy, or for a combination of these reasons. The role of arbitrators in resolving disputes is quasi-judicial. Accordingly, arbitrators should be subject to stringent standards of conduct to guarantee their integrity and impartiality, and the transparency of the arbitral proceedings. It is due to these standards that arbitrators are required to disclose actual and potential conflicts of interest that could indicate that their decision might not be made impartially and independently of the influence of any party. This article discusses the qualifications and conflict-of-interest disclosure standards for arbitrators in three broad categories of international arbitration:

(1) international commercial arbitration between private parties or a private party and a quasi-governmental entity;

(2) international investment arbitration between a foreign investor and the sovereign State where the investment is made or between the State parties to the treaty; and

(3) international trade arbitration between States arising from violations of international trade agreements prohibiting restraint of trade.

The documents on which this discussion of international commercial arbitration are based are the following:

(1) the United Nations Commission on International Trade Law (UNCITRAL) Rules of International Commercial Arbitration (the UNCITRAL Rules),1

(2) the International Arbitration Rules of the International Center for Dispute Resolution (ICDR Rules), a division of the American Arbitration Association (AAA),2

(3) the AAA-American Bar Association (ABA) Code of Ethics for Arbitrators in Commercial Disputes (AAA-ABA Code),3

(4) the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines),4

(5) the International Chamber of Commerce (ICC) Rules of Arbitration (ICC Rules),5 and

(6) the Internal Rules of the ICC International Court of Arbitration.6

The documents on which this discussion of international investment arbitration are based are the following:

(1) Chapters 11,19 and 20 of the North American Free Trade Agreement (NAFTA),7

(2) the Code of Conduct for Dispute Settlement Procedures under NAFTA Chapters 19 and 20 (NAFTA Code of Conduct),8

(3) the ICSID Convention,9

(4) the ICSID Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules),10

(5) the ICSID Additional Facility Rules,11 and

(6) the paper entitled "Possible Improvements of the Framework for ICSID Arbitration and Administrative and Financial Regulations."12

The documents on which this discussion of international trade disputes are based are the following:

(1) the World Trade Organization (WTO) Dispute Settlement Understanding (DSU)13; and

(2) the Rules of Conduct for the understanding on rules and procedures governing the settlement of disputes.14

This work was inspired by a comparison chart prepared by the Working Group on Practical Aspects of Transparency and Accountability Issues in Investment Treaty Arbitration of the International Dispute Resolution Committee of the International Section of the Washington, D. …

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Comparing Arbitrator Standards of Conduct in International Commercial Trade Investment Disputes
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