Impossible Ethics? A Critical Analysis of the Rules on Qualifications and Conduct of Adjudicators in the New EU Investme
This contribution will outline and analyze a selection of rules on qualifications of judges, and the framework of rules on ethics, vis-à-vis perceived problems related to arbitrators in investor-State dispute settlement (ISDS). It specifically focuses on
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ents 1 Introduction 2 Permanent Investment Courts as a Response to Systemic Criticism 2.1 An Overview of the Current Systemic Criticism 2.2 The Link Between the Conduct of International Adjudicators, Their Role, and Legitimacy 3 Mapping the Current Landscape of Rules on Ethics and Qualifications of International Adjudicators 3.1 International Arbitration: ABA Codes of Ethics and IBA Guidelines 3.2 International Investment Agreements (IIAs): Current and Future Framework 3.3 International Courts and Tribunals 4 From Arbitrators to Judges: A(nother) Paradigm Shift 5 Conclusion References
Abstract This contribution will outline and analyze a selection of rules on qualifications of judges, and the framework of rules on ethics, vis-à-vis perceived problems related to arbitrators in investor-State dispute settlement (ISDS). It specifically focuses on the conduct, ethics and qualifications of “Members of Tribunal” for a series of new generation EU Agreements (CETA, EUVIPA, EUSIPA, EUMEX, TTIP) pursuant to publicly available documents at the time of the writing. It will identify the core characteristics of rules on ethics and qualifications in arbitration and the prescribed ICS practice, as well as the relevant rules governing international courts such as the International Court of Justice (ICJ) and the International Criminal Court (ICC). The contribution will detail provisions in each EU Agreement; as well as the new USMCA or “NAFTA 2.0”, as a strikingly different take on what ‘reform’ This research has been funded by the Carlsberg Foundation (Carlsbergfondet), and conducted under the auspices of iCourts, funded by the Danish National Research Foundation Grant no. DNRF105. G. Ünüvar (*) and T. Kreft Faculty of Law, University of Copenhagen, Copenhagen, Denmark e-mail: [email protected] © Springer Nature Switzerland AG 2020 European Yearbook of International Economic Law 2020, European Yearbook of International Economic Law 10, https://doi.org/10.1007/8165_2020_47
G. Ünüvar and T. Kreft
could look like. In comparing these two different contextual applications of ethical rules (to arbitrators and judges respectively), the contribution will finally argue that, given their fundamentally different sources of authority and perceived (reputational and actual) duties and responsibilities, any confusion in applying ethical rules tailored for arbitrators to international court judges will prove to be problematic and work against intended reform objectives such as (re)establishing legitimacy.
1 Introduction In international arbitration, rules governing the ethics and qualifications of its actors, such as legal counsel and arbitrators, are infamously fragmented.1 This is also the case for investor-State dispute settlement (ISDS), a system essentially based on arbitration. The vast majority of international investment agreements (IIAs) lack a detailed set of provisions dedicated to arbitrator ethics or qualifications. Sets of ethics rules, such as those produced by the International Bar Association (IBA) or American Bar Association (AB
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