The Duty of Disclosure of International Arbitrators

Abstract

The duty of disclosure that falls to investment arbitrators currently presents a significant number of contentious aspects. Many ICSID challenges have addressed issues such as the formal aspects and content of the statement of impartiality and independence, as well as the scope of this duty and the applicable disclosure standards. A detailed analysis of the decisions resulting from these challenges leads to the conclusion that the unchallenged co-arbitrators, who are in most cases responsible for settling challenges brought by parties, may have sometimes erred on the side of leniency when judging their colleagues’ actions or omissions in connection with the duty of disclosure. In practice, the very wording of ICSID provisions and a sense of endogamy among the somewhat limited group of arbitrators are two factors that have prevented breaches of this duty from being sanctioned with disqualification. This chapter sets out and argues for a series of regulatory reforms that seek a firmer reshaping of the profile of the duty of disclosure within the context of investment arbitration (e.g., improving formal aspects of the statement of impartiality and independence and making changes to the drafting of ICSID Rule 6(2)b, as well as various suggestions concerning the timing, celerity and addressees of the duty of disclosure). The chapter also contains detailed reflections on two closely connected issues: the importance of having access to a reliable CV for each investment arbitrator and the arbitrators’ duty to investigate. A recurrent underlying theme is the role that traditional arbitral institutions or new stakeholders such as the Multilateral Investment Court (MIC) should adopt vis-a-vis the adjudicators’ duty of disclosure in the investment milieu.