Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel

By Nathalie Bernasconi-Osterwalder, Lise Johnson, Fiona Marshall on April 14, 2011

This paper examines the investor-State arbitrations in view of the available common institutional safeguards ensuring arbitrator independence and impartiality.

It highlights how the existing framework can and should be used to better resolve existing problems, and focuses on the type of conflict of interest that can arise from arbitrators in investor-State disputes serving as counsel in other investor-State arbitrations. The paper analyzes the rules commonly used in investor-State arbitrations and the decisions evaluating the dual-role issue. It further examines the International Bar Association (IBA) Guidelines and Burgh House Principles and describes the guidance they provide on the subject. In conclusion, the paper discusses the options for implementing improved and consistent responses to address and resolve the issues related to the current dual-role phenomenon in investor-State arbitrations.

Report details

Investment Law & Policy
Focus area
IISD, 2011