Forged Independence and Impartiality: Conflicts of Interest of International Arbitrators in Investment Disputes

Abstract

This article represents the first comprehensive analysis of the challenges to the independence and impartiality of international arbitrators in investment disputes. This article evaluates the rules that govern such challenges and asserts that the standards for challenging ICSID arbitrators are not adequate to enable real challenges to arbitrators. Indeed, only one challenge under the ICSID rules has been successful. This in itself is not necessarily problematic assuming the parties agree to dispute settlement with this in mind. This article proposes adjustment of these standards in a variety of ways to help ensure the fairness and perceived fairness of the arbitral process. Finally, this article calls for states and the arbitration community to take steps to combat conflicts of interest of international arbitrators in order to maintain the legitimacy of the regime and to continue to promote growth of the global economy. As the IBA Conflicts of Interest Subcommittee will return to the issue of conflict of interest in international arbitration shortly, this article hopes to influence its efforts, as well as the decisions of states when consenting to arbitration and when considering how to improve the system.