Study On The System Of Ensuring The Impartiality And Independence Of Arbitrators Under The ICSID Rules

In international investment arbitration proceedings,the impartiality and independence of arbitrators are like two sides of the same coin,together forming the cornerstone of the tribunal’s reliability.To this end,the ICSID Arbitration Rules establish a set of specific systems to regulate the conduct of arbitrators,avoid“conflict of interest”,and introduce oversight by the arbitral tribunal,collectively referred to as the “The System of Ensuring the Impartiality and Independence of Arbitrators”.The main sectors of this system are Arbitrator Appointment,Obligation of Disclosure and the Disqualification of Arbitrators.The ICSID Arbitration Rules are designed to be heavily based on international commercial arbitration,but they are distinctive in in some area.The ICSID Arbitration Rules are designed to achieve a balance between the interests of the private investor and the public interest of the host country,and have both public and private law attributes.Moreover,the investment disputes often arise repeatedly over time on the same policy grounds and under the same treaty rules.Therefore,in ICSID arbitration,issues such as the qualifications and nationality of arbitrators,the“repeated appointment” of arbitrators and the transparency of the process have received more attention,and the system of ensuring the impartiality and independence of arbitrators has faced more challenges,with the rules exposed some problems.Based on empirical research and papers,the main problems are as follows:(1)the mechanism of unilateral appointment of arbitrators and the transparency of the appointment have aggravated the distrust of parties towards arbitrators;(2)the lack of diversity in the sources of arbitrators in practice and the double-hat delima have weakened the public confidence;(3)The scope of disclosure is too vagueand,and there are too many invalid disqualification applications based on the failure of arbitrators to fulfill their disclosure obligations,which delays the proceedings;(4)the substantive standards of impartiality and independence are too high and not strongly enforceable,and there is more room for interpretation by the arbitral tribunal in practice,which leads to the lack of predictability of recusal decisions on arbitrators.In order to resolve these problems,in recent years,ICSID and UNCITRAL Working Group III have actively explored the reform of the selection and appointment mechanism of arbitral tribunals,Draft Code of Conduct for Adudicators in International Investment Disputes and the Proposed Amendments to ICSID Arbitration Rules.The author concluded that the amendments should be aimed at ensuring that the rules are effective and sufficient to show clear guarantees of impartiality and independence,and that it is not necessary to leave the existing ICSID Arbitration system behind.The rules should be revised in a targeted manner to address the existing problems,and a code of conduct for arbitrators should be incorporated into the ICSID rules system.Specific suggestions for improvement are as follows.First,the author suggest improve the arbitrator list,establish the advisory centers and regulate the private contact between arbitrators and parties in the appointment process.Second,with reference to the Draft Code of Conduct for Adudicators in International Investment Disputes and the Proposed Amendments to ICSID Arbitration,the author suggest improve the transparency of the appointment process by extending the the duty of the arbitrator to investigate and disclose.In this way,the number of invalid disqualification applications can be reduced,which will enhance efficiency.Third,it is advisable to adopt a “justifiable doubt” standard for the substantive standard of impartiality and independence,which can make the arbitration rules to match the arbitration practice and improve the predictability of decides.