The European Union (EU) has declared its dissatisfaction with investor- state dispute settlement (ISDS) and its intention to replace it with an investment court system. Other states have expressed concerns over the transparency of ISDS and have withdrawn or failed to renew their bilateral investment treaties. Two of the major ISDS conventions, the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL), are reviewing proposals for reform. Because arbitrator bias is one of the few ways that an award can be challenged, this Note proposes reforms in the selection and appointment of arbitral tribunals.

Arbitrators are required to disclose conflicts and are advised to reveal circumstances that may create the perception of partiality and/or a lack of independence. The structure of the arbitration community makes it more vulnerable to circumstances under which an arbitrator might be biased due to the various roles that they play within the community or how they adjudicate certain issues. This Note proposes two solutions to mitigate these concerns: (1) a “hardening” of ethical guidelines into regulations that govern arbitrator conduct and (2) a mandatory, systematic conflicts check like those used by many law firms to pre-vent conflicts.

Continue reading Saving Private ISDS: The Case for Hardening Ethical Guidelines and Systematizing Conflicts Checks