The Study On Safeguard Mechanism Of Arbitrators’ Independence And Impartiality Under The ISDS Reform

The independence and impartiality of arbitrators plays a vital role in maintaining the fairness of arbitration process and awards.Most arbitration institutions have set up special provisions to safeguard the independence and impartiality of arbitrators in the arbitration rules,and have introduced the soft rules as guideline.However,as the amount of the international investment disputes continually increasing,the defects in the current mechanism have been exposed.The parties to the investment disputes believe that the existing mechanism can no longer maintaining the arbitrators’ independence and impartiality.Actually,the improvement of arbitrators’ independence and impartiality had become one of the major tasks in reform of the Investor-State Dispute Settlement(ISDS).In order to achieve it,the Secretariats of ICSID and UNCITRAL have been jointly making the Code of Conduct for Adjudicators in ISDS(Code).Now the second draft of Code had been published.It summarized the suggestions received in recent years,aimed to provide effective restraint for the arbitrators’ behaviors in the investment arbitration process.In this paper,according to the achievements relating to the ISDS reform,the author will analyze the problems existed in the current mechanism and try to find recommendations for them.In the last chapter,the author will make some suggestion for the improvement of arbitrators’ independence and impartiality in Chinese ISDS.This paper is divided into five chapters,and the specific contents are summarized as follows:The first chapter is an overview for the arbitrators’ independence and impartiality under ISDS.The author introduces the concepts of independence and impartiality and compares the similarities and differences between them.The author then demonstrates the current crisis of arbitrators’ independence and impartiality under ISDS and illustrates several conflicts of interest that have great impact on the arbitrators’ independence and impartiality.In the end,the author analyzes the particularity of the independence and impartiality of arbitrators in ISDS causes by then difference between investment and commercial arbitration.The second chapter is an introduction to the existing safeguard mechanism of the arbitrators’ independence and impartiality under ISDS.The most influential institutions in the field of investment arbitration are the ICSID and UNCITRAL,the author explains the relevant rules to maintain the arbitrators’ independence and impartiality established by the two,including the qualification,disclosure and challenge for the arbitrators.The third chapter is the analysis of the defects in the safeguard mechanism of arbitrators’ independence and impartiality under ISDS.First,the pool of ISDS arbitrators is short of the diversity and the knowledge on the public interest of State.Second,the disclosure system of ISDS lacks the guideline for the disclosure of arbitrators,the sanctions for the breach of disclosure obligations and the rules for the third-party funding.Third,the current disqualification system under the ICSID has neither a consistent standard nor the time limit for applying challenge,which will cause the abuse of disqualification system.The forth chapter gives the recommendations for the defects mentioned in the previous chapter.First,strengthening the power of arbitration institutions on maintaining the arbitrators’ independence and impartiality,including adding the institutions’ power on confirming the appointment of arbitrators and returning the power of disqualifying an arbitrator back to the ICSID institution.Second,the improvement of disclosure rules,including amending the arbitrators’ disclosure obligation of the Code,adding the sanctions for the breach of disclosure obligation and making the disclosure rules for the third-party funding.Third,the perfection of the disqualification system for arbitrators in the ICSID,including clarifying ICSID’s standard of disqualifying arbitrators is the standard of justifiable doubts and preventing the abuse of disqualification process by setting time limit for challenging arbitrators.The fifth chapter is the analysis on the safeguard mechanism of arbitrators’ independence and impartiality under the ISDS of China.The author demonstrates the Arbitration Law and the investment arbitration rules of China and makes recommendations to the defects in the existing mechanism of ISDS arbitrators’ independence and impartiality in China.