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Ex Pluribus Unum? On The Form and Shape of a Common Code of Ethics in International Litigation

  • Chiara Giorgetti (a1) and Jeffrey L. Dunoff (a2)

Extract

In April 2019, member-states of UNCITRAL Working Group III requested the UNCITRAL Secretariat to undertake preparatory work for a Code of Conduct for Investor-State Dispute Settlement focusing on the implementation and enforceability of such a code. This groundbreaking development signals that, for the first time, a consensus exists that a code of ethics for Investor-State dispute settlement is desirable and needed. This contribution addresses three threshold questions that such preparatory work raises, namely: the preferred form of the code, the code's substantive reach, and the optimal process for bringing a code to fruition. As set out below, we urge that states adopt a mandatory common code of ethics for disputes involving states, and that arbitral institutions adopt this code as part of their rules for administering arbitration.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 UN Comm'n on Int'l Trade Law, Report of Working Group III (Investor-State Dispute Settlement Reform), UN Doc. A/CN.9/970, para. 84 (Apr. 9, 2019). States requested that this work be undertaken in conjunction with the International Centre for Settlement of Investment Disputes.

2 R.R. Baxter, International Law in “Her Infinite Variety”, 29 Int'l & Comp. L.Q. 549 (1980).

3 For general introductions to the field, see Catherine A. Rogers, Ethics in International Arbitration (2014); Arman Sarvarian, Professional Ethics at the International Bar (2013).

5 For one argument in favor of a more decentralized approach, see Catherine A. Rogers, Context and Institutional Structure in Attorney Regulation: Constructing an Enforcement Regime for International Arbitration, 39 Stan. J. Int'l L. 1, 1 (2003).

6 The resolution of this question of form, of course, has implications for questions concerning the process through which the rules should be created, although given space constraints we do not further address the issue here.

8 The Chagos Archipelago is a group of atolls in the Indian Ocean (the largest is Diego Garcia) administered by the United Kingdom as the British Indian Ocean Territory. In 2010, the United Kingdom established the Marine Protected Area, which covers an area of more than half a million square kilometers around Chagos in which fishing and other activities are prohibited. Mauritius argued that the establishment of the Marine Protected Area violated international law and UNCLOS. See id. at paras. 31-32.

9 Id. at paras. 40, 42, 45-46.

10 Id. at para. 167.

11 Id. at para. 165.

12 Id. at para. 151.

13 Id. at paras. 163-65. The tribunal did not differentiate between commercial and investment arbitration and concluded that rules pertaining to them are not relevant to the consideration of interstate cases. We think, to the contrary, that investment arbitration, which involves a state as a litigant and has strong public law overtones, has more in common with other proceedings involving states than with wholly private international commercial arbitration.

14 Criticisms of this practice are explored in greater detail in John R. Crook, Dual Hats and Arbitrator Diversity: Goals in Tension, 113 AJIL Unbound 284 (2019); Hélène Ruiz Fabri, Conflicts of Interest: Navigating in the Fog, 113 AJIL Unbound 307 (2019).

15 This is the approach that the ICJ adopted in its Practice Directions.

17 Id. art 1.

20 We believe that most arbitral institutions have authority to adopt a code of ethics, without seeking member state approval, although we recognize that the issue is not free from doubt and that each institution is governed by different legal instruments.

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