India: The Third Version Of The Draft Code Of Conduct For Adjudicators: Is It Effective In Silhouetting An Ideal Mechanism For The Regulation For Double Hatting?

Abstract:

Double hatting has been a pertinent issue in the arena of international arbitration for more than a decade now. It has raised concerns over legitimacy of arbitration as an alternative dispute resolution mechanism. The question of its regulation has proven to be a bone of contention over which the arbitration community stands divided. The recent release of the Third Version of the Draft Code of Conduct for Adjudicators by ICSID and UNCITRAL in September 2021 has again sparked discussions over the practice. The lack of any proper mechanism makes this legal lacuna relevant in the contemporary times. This article aims to provide an in-depth analysis of two sides of the debate. It also aims to study double hatting in light of both investment and commercial arbitration. Subsequently, it will delve into a critical analysis of the Third Version of the Draft Code by highlighting the existing shortfalls. Lastly, it will try to answer the question of regulation by proposing various suggestions.

Through this article, the author argues that there is a need for a proper framework to regulate double hatting not only in investment arbitration but in commercial arbitration as well. The author ultimately emphasises on the need to adopt a balanced approach. Neither an outright ban nor regulation merely in the form of disclosure will prove to be a fruitful remedy. To deal with the problem effectively, there is a need to deliberate and find a resolution that balances the concerns from both sides of the debate.

Introduction

The issue of double hatting or dual hatting came into the limelight in the year 2009 after Philippe Sands' speech at the annual conference of International Bar Association in Madrid. Mr. Sands, who is a distinguished barrister and renowned author, raised his concerns over this common practice by describing it to "imperil the entire system of investment arbitration."¹ Since then, a discourse has been stirred up in the arena of international arbitration over this matter.

Double hatting refers to the practice "in which individuals act simultaneously as arbitrators and legal counsels in different cases in international arbitration."² Thus, it provides the practitioners with an option to change their hats as per their whims and fancies.

This quagmire has attracted criticism since 2003 by scholars and practitioners because it seems to oppugn the fairness of the arbitration process.³ It raises a number of caveats related to issue conflicts, impartiality, and leads to the problem of revolving door. Revolving door means a situation where an individual plays more than one role by acting as a counsel, arbitrator, expert witness or tribunal secretary simultaneously or sequentially.⁴

The International Bar Association Guidelines on Conflict of Interest (hereinafter, "the Guidelines") does not deal with double hatting effectively. It acts as a toothless tiger because of its non-binding nature. These Guidelines merely preclude an arbitrator from accepting an appointment or continuing as the same if there are justifiable doubts regarding impartiality or independence of the arbitrator.⁵ On the other hand, the Court of Arbitration for Sports (CAS) has addressed the issue of double hatting with a heavy hand by amending its regulations to impose a ban on double hatting in 2009.⁶

Recently, the Third Version of the Draft Code of Conduct for Adjudicators (Third Version) released by ICSID and UNCITRAL proposes measures to curb double hatting in investment arbitration in September 2021.⁷ The Third Version replaces the Second and the Original Version of the Draft Code of Conduct for Adjudicators (Draft Code), which were released in April 2021 and May 2020 respectively.⁸ The release of the Third Version has galvanised the debate on double hatting, resulting in making it a conundrum of contemporary relevance.

The Good, The Bad and The Ugly: Decoding the Debate

The debate on double hatting in international arbitration has remained unsettled for over a decade now. Critics of double hatting challenge it for its lack of transparency, the appearance of bias, diversity issues, etc. and demand for its ban. On the other hand, the supporters of this long-standing practice base their stance on the expertise of arbitrators, inclusivity, economic viability and the increased choice of arbitrators that it provides. While the debate has indeed polarized the arbitration community, at the same time, it has initiated a nuanced discourse on the issue.

The Perspective of the Critics

As mentioned earlier, double hatting is discredited in international arbitration due to issue conflicts. Issue conflict refers to actual bias or an appearance of bias that hinders the adjudicator to adjudge a case with an open mind due to their relationship with the subject matter of the case.⁹

Philippe Sands has rightly summed up the problem by saying that

In Eiser Infrastructure Limited and Energia Solar Luxembourg S.A.R.L v. Kingdom of Spain¹¹, the award was annulled on the ground that one of the arbitrators was representing the claimants as counsel in two active arbitration proceedings. Furthermore, the concerned arbitrator had also represented the claimant as a counsel in eight cases. Ultimately, it was held that he manifestly lacked impartiality. In Telkom Malaysia v. Ghana ¹², Court of Hague disapproved of Professor Gillard's dual roles as an arbitrator in Telekom Malaysia case and as a counsel in RFCC v. Morocco¹³. Due to this, he had to resign as a counsel.

Apart from this, double hatting also leads to the issue of role confusion. Role confusion refers to the questions on proper conduct that may surface with adjudicators wearing dual hats. At times, the practice hints towards impropriety because there is an appearance of bias. In a case where there are justifiable doubts with respect to the impartiality of an arbitral tribunal, then it cannot be claimed that the process is fair.

Double hatting has also been described as a practice which is contrary to the public policy. This is because enforcing of awards by an arbitrator that appears to be biased towards a party may adversely affect public confidence in the entire arbitration process. The faith of the parties in the process is paramount and they opt for arbitration on the premise of arbitrators' impartiality and expertise. Therefore, it is sacrosanct for the arbitrators to be unprejudiced because otherwise the legitimacy of the entire arbitration process gets diluted. Reliance can also be placed on Article 57 read with Article 14 of the ICSID Convention, which show that arbitrators can be disqualified based on their lack of reliability to ensure independent judgement.¹⁴

Additionally, banning the practice of revolving door will provide a check on the overlapping of roles and therefore, will create more avenues for the new entrants. It will encourage practitioners from different regions, cultures and genders to set foot in the area of international arbitration. Hence, it can be observed that banning the practice has its fair share of pros.

Perspective of the Supporters

Supporters of double hatting, on the other hand, argue that it enhances the process of dispute resolution. It provides the parties with a greater option to have persons with expertise on a particular subject matter as adjudicators.¹⁵ Expertise of the arbitrator is one of the major reasons as to why a party "opts-in" for arbitration in place of litigation. Banning this conventional practice will adversely affect the pool of arbitrators, both quantitatively and qualitatively, because many practitioners might leave their hats as arbitrators for more remunerative jobs.

A ban is also not feasible because it fails to consider that a number of practitioners are transitioning from the role of legal counsel that of a full-time arbitrator. A complete ban would discourage them from transitioning as this option will not be economically viable. Practitioners, especially the new entrants, do not have enough appointments to adopt the role of a full- time arbitrator. They will avoid taking the risk and probably will assume the role of a legal counsel only. This, in turn, will further adversely affect the size of the pool of arbitrators.

The nature of arbitration is such that it does not provide appointments for specified tenures. Arbitrators cannot be equated with permanent judges of other international courts. This is because permanent judges hold tenured office and are allocated cases mostly on rotational basis. Moreover, they are remunerated on regular basis. On the other hand, ad-hoc arbitrators are remunerated on case by case basis. There is no guarantee of appointments as such.

The double hatting debate proposes two extreme options. One side proposes that there should be an outright ban whereas the other side proposes that the parties should not be restricted from indulging in it. The debate put forth valid points from both the sides and therefore, the rationale behind the arguments of both the sides should be considered. Instead of siding with an extreme option, a balanced approach which lies in the middle of the spectrum of the debate should be used to tackle this dilemma.

Stating the statistics

A study conducted revealed that international commercial arbitration was dominated by a small group of males, who were referred to as "grand old men".¹⁶ Initially, the majority of these men were European. However, with time, this group was joined by Anglo Americans as well.

Thereafter, in empirical study, Sergio Puig measured the power or influence of each arbitrator by taking into account "individual's exposure in the system".¹⁷ Through this study, he identified a group of twenty-five arbitrators who dominate the field. He termed them as "the power brokers". Power brokers mainly comprised of "male, pale and stale" i.e. aged men from Europe and North America.¹⁸

In another empirical study, the scope of research undertaken by Puig was broadened by including non-ICSID cases as well. It was observed that in forty- seven per cent of cases, at least one arbitrator was wearing dual hats by simultaneously serving as a counsel in other investment cases.¹⁹

Currently, the pool of arbitrators is dominated by men belonging to western states. They are referred to as "male, pale and stale". ²⁰ Women served as an arbitrator in only 14.4% of the total number of cases from 2012 to 2019. In this small fraction, two women accounted for 45.3% of the cases. ²¹ This shows that international arbitration is plagued with structural inequalities due to the lack of representation in the appointments. There is a dire need to expand the size of the pool to smash homogeneity by including more women and arbitrators of different nationalities and ethnicities.

The Unruly Horse in International Investment Arbitration

Threats posed by double hatting have mainly been analysed in light of international investment arbitration. With the state as a party, the public interest is at stake in investor-state disputes.²²

The frequency of double hatting in investment arbitration is higher as compared to commercial arbitration. Since the field is highly specialised, the pool size of arbitrators is small. As a consequence, the overlapping of roles is prevalent. The number of arbitrators has indeed increased over the years but the majority of the ISDS arbitrators get one or two cases annually.²³ Therefore, putting a blanket ban on double hatting in ISDS is not feasible.

From the early twenty-first century, investment arbitration has been taking a juridical shape and the role of precedents has increased considerably. If double hatting is not regulated, an arbitrator might misuse his power to sculpt a precedent, so that it can be used to support his case as a counsel. Since bilateral investment treaties ("BITs") are along the same lines and have similar interpretations, the reasoning behind one award might affect the other significantly.²⁴

Clauses prohibiting double hatting have been incorporated in some of the Bilateral Investment Treaties ("BITs"). The Netherlands Draft BIT aims to combat the challenge of double hatting by taking the past record of the arbitrator into account. It demands that the arbitrator should not have acted as a legal counsel to the disputing parties in the previous five years.²⁵ Moreover, Article 8.30.1 of Canada-European Union Comprehensive Economic and Trade Agreement also discourages double hatting.²⁶

Investment arbitration calls for some major reforms as more and more states have been withdrawing from investment treaties.²⁷ Under Article 6(2) of ICSID's Arbitration Rules, arbitrators have to sign a declaration and have to attach a statement of their past and present professional, business and other relationships with the parties.²⁸ This is done to assess if issue conflicts are there or not. However, there is a need to deal with double hatting in investment arbitration more authoritatively. The latest version of the Draft Code takes some steps in this direction.

The Metamorphosis of the Draft Code of Conduct for Adjudicators

The Third Version of the Draft Code replaces the first and the second versions of the Draft Code. Article 6 of the First Version of the Draft Code ("First Version") aimed to address the issue of double hatting by restricting practitioners from indulging in multiple roles.²⁹ It did not lay down fixed rules but instead, created a room for deliberation and initiated discourse on the given topic.

Thereafter, the Second Version of the Draft Code ("Second Version") was released on April 19, 2021.³⁰ The Second Version limits double hatting by restricting "an Adjudicator, in an International Investment Disputes (IID) proceedings, to concurrently act as a counsel or expert witness in another IID case."³¹ However, the parties can decide otherwise.³²

In September 2021, the Third Version replaced the provision in the Second Version by three plausible solutions to address the problem. The first option talks about the "full prohibition" on double hatting. The second option suggests a "modified prohibition". It is akin to the alternative provided in the Second Version and leaves the choice of regulation with the parties. The last recourse provides with the option of full disclosure by the parties along with the option to challenge the appointments.³³

Analysing the Effectiveness of the Third Version in Taming the Unruly Horse

Instead of coming up with a concrete solution, the Third Version has explored various possibilities. The Third Version seems like an amalgamation of the two previous versions. It can be seen as a pleasant revision to the Second Version, which had adopted a narrow perspective on the topic.

As per the first option, full prohibition might be a possible solution. Indeed an outright ban would be easier to implement.³⁴ However, the ease of implementation should not be the criterion for dealing with this quagmire. All the nuances of double hatting should be analysed.

An outright ban might prove to be counterproductive and end up preserving the oligopolistic nature of arbitral appointments. This is because only the most powerful arbitrators will be in a financial position to confine themselves in a single role. It will, thus, exclude a greater number of people than necessary.

Alternatively, temporal bans have also suggested by many practitioners and academicians.³⁵ They impose a cooling off period on the practitioners for a specific time limit. However, they fail to take the interests of new entrants into account. Temporal ban would result in preventing them from resuming the role of a counsel immediately after the role of an arbitrator. Lack of appointment prospects might be a disincentive for them to take up the role of an arbitrator. Such bans also ignore the future incentives that might be there for an arbitrator to rule in favour of a party. For example, he might be seeking an opportunity to work as a counsel for a party. Moreover, the scope of the ban, if not limited to cases with similar subject matter, might have an overreaching impact.

There is no need to prevent adjudicators from taking international counsel work. It will unnecessarily reduce the total number of arbitrators in the field. Concurrent representation poses a threat to the legitimacy and integrity of arbitration when there are issue conflicts. Therefore, it is not problematic in cases involving unrelated parties and different subject matters.

The second option provided by the Third Version is akin to the alternative provided in the Second Version. As per the Second Version, double hatting was allowed if an informed consent of the parties was given. However, this measure fails to preserve the key values of arbitration. Even if the parties do not object to the practice, the question of impartiality and independence does not go away. This might prove to be a non-systematic approach to address the issue and hence, lead to legitimacy concerns.

Moreover, this option can be construed as a ban in a disguised manner. The consent clause might prove to be unrealizable as the parties might reject double hatters on futile grounds, having no bearing on the issue at hand. This might result in an indirect blanket ban on the practice itself.

The third option of disclosing of overlapping roles is an important step but it is not sufficient. This is because firstly, based on disclosures, parties might challenge arbitrator appointments for far-fetched reasons. Secondly, in spite of the disclosure, the practice might go unchecked as the parties might not challenge the appointment in the first place.

Thus, in light of the above discussion, it can be seen that the Third Version proves to be a forward step in regulation of the practice. However, there is still a long way to go. Institutions need to address this time-honoured practice carefully by weighing all the pros and cons of each approach together.

Double Hatting in International Commercial Arbitration: the elephant in the room

In spite of its drawbacks, double hatting does not create a similar uproar in the field of commercial arbitration. Issues related to arbitrator's impartiality, bias, transparency, etc. are often neglected in this arena. As per the 2015 International Arbitration Survey, 63% of the respondents were of the opinion that issue conflicts in commercial arbitration do not need call for specific regulation.³⁶

Double hatting has been considered a critical issue when it comes to investment arbitration primarily because of the public nature of the disputes. Additionally, the practice is more frequent in investment arbitration than in commercial arbitration due to a relatively small size of the pool of arbitrators. However, it is pertinent to note that these issues find their place in commercial arbitration as well.

Questions of public interest form part of commercial arbitration as well. State and public entities are often parties to these commercial disputes. Public interest comes into play in cases where the breach of contract pertains to environmental issues, industrial disputes, competition law concerns, consumer disputes, etc.³⁷

The argument that double hatting is not as problematic in commercial arbitration as it is in investment arbitration, owing to the larger pool size of arbitrators, does not hold waters. This is because a small number of arbitrators are appointed in the majority of the cases. Thus, the size of the pool does not play a significant role due to the monopolistic nature of arbitrator market.

As disputes are getting more and more complicated in nature, the demand for arbitrators specialising on different subject matters is increasing. The large number of arbitrators does not mean that a large number of arbitrators have expertise on a particular subject matter. Hence, larger pool size does not necessarily reduce the frequency of practitioners indulging in double hatting.

Therefore, double hatting cannot be neglected in the arena of international commercial arbitration. Not only does the practice raise concerns over the propriety of the proceedings but also have underlying questions of public interest attached to it.

The Way Forward

Double hatting highlights numerous issues that persist in international arbitration- from monopolised nature of arbitral appointments to lack of diversity or representation. The discourse raises practicable points that should be kept in mind while charting the future of double hatting in international arbitration.

Non-regulation of double hatting proves to be detrimental to the fairness and legitimacy of the process. More and more people might start choosing litigation over arbitration. At the same time, mere disclosure of the information is not the solution. The problem should be dealt with more authoritatively.

Banning the practice outrightly is not a wise as it will prove to be excessive. Restricting double hatting in cases that do not involve issue conflicts or are on different subject-matters is not practicable. Through a ban, the size of the pool will be reduced to a large extent, adversely affecting the expertise, diversity and the options available to the parties.

An outright ban on double hatting would negatively impact the diversity of the pool. It would result in preserving the hegemony of the "male, pale and stale". This step would result in "reversing any progress made on gender diversity by the international arbitration community over the past years."³⁸

Diverse backgrounds, perspectives, experiences enhance the quality of decision making. Since the public interest factor plays a significant role in investment arbitration, the makeup of the arbitrators in terms of demography and gender play a significant role. There is a need to increase diversity and representation in international arbitration. The international regime cannot afford to take measures that dampen the diversity of the pool of arbitrators.

Therefore, instead of an absolute restriction, a case-by-case approach should be adopted. The issue conflict in question should be analysed in each case.

For this purpose, special committees dealing with arbitrator appointments should be set up. These committees should do a detailed background check of the arbitrators, analyse the scope of double hatting on a case-by-case basis and should deal with the challenges pertaining to the overlapping of roles. There should work in a time-bound manner, without delaying the process.

In addition to this, active steps should be taken to regulate double hatting in commercial arbitration as well. For this, major institutional reforms are also required. Institutions should incorporate provisions addressing double hatting in their rules. More detailed disclosures should be demanded from arbitrators. The above-mentioned case-by-case approach should be adopted by the institutions. This might prove to be tedious but it is necessary to secure public confidence in the legitimacy of the process.

Furthermore, Information asymmetries, politics behind appointments and imperfect competition strategically result in increasing the barriers for the new entrants. Therefore, there is a need for some legal or judicial supervision. Measures to increase transparency should be taken. More and more institutions should start publishing information on arbitrators and arbitrator challenges. Arbitrator intelligence, which is a non-profit innovation, can also be used to increase transparency in the arbitrator selection process as it helps in creating reports on arbitrators and their decision making.³⁹ The reports available on arbitrators will help the parties and practitioners to assess issue conflicts better. Following the example of the Singapore International Arbitration Centre, other arbitration institutions should also sign cooperative agreement to promote the use of Arbitrator Intelligence Questionnaire.⁴⁰ This data will help in reducing information asymmetric which in turn leads to the creation of barriers for the new entrants.

In contemporary arbitration, double hatting has developed as a norm. Over the years, a positive connotation has been attached to this deep-rooted practice. The most qualified, experienced and powerful practitioners indulge in this. If the most powerful arbitrators start self-regulating, it will have a massive influence as this might destabilise the practice. More and more steps should be taken to reduce the reputational incentives associated with the practice and to promote self-regulation in the field.

These measures will effectively help in dealing with issues related to transparency, diversity, bias etc. without adversely affecting the size or the expertise of the arbitrator's pool. Hence, it is critical to balance the interest of all the stakeholders.

Concluding remarks

Double Hatting has been prevalent in international arbitration for years. The issue requires to be urgently addressed by the institutions and the practitioners. Various Versions of the Draft Code have tried to chalk out an effective mechanism to address the issue. However, there still lays a great deal of deliberations before a proper framework is developed. Since, the option of a blanket ban has its own shortfall, it becomes imperative to reach the framework with an open mind and consider other alternatives. The Third Version has provided three recourses but none of them seems to be workable. In light of this, the author believes that analysing the impact of double hatting on a case-by-case basis might help in striking the right balance. It hopefully would be an effective remedy in dealing with the conundrum and might prove to be successful in satisfying both sides of the debate.

Ananya is a student of Rajiv Gandhi National University of Law, Punjab and a Winner in the Honourable Mention category of the 8th Ed. Arb Excel Essay Writing Competition.

Footnotes

1. By Dennis H. Hranitzky & Eduardo Silva Romero, The 'Double Hat' Debate in International Arbitration, N.Y. Law Journal (February 16, 2021, 8:45 PM), available at https://www.law.com/newyorklawjournal/almID/1202462634101/The-Double-Hat-Debate-in-International-Arbitration/?slreturn=20200827083524

2. Malcolm Langford et al., The Ethics and Empirics of Double Hatting, 6 (7) ESIL Reflections 1, 1-12 (2017)

3. Chiara Giorgetti, Who Decides Who in International Investment Arbitration, 35(2) U. Penn. J. Int'l Law 431 (2014).

4. Malcolm Langford et al., The Revolving Door in International Investment Arbitration, Journal of International Economic Law 1, 1-26 (2017).

5. IBA Guidelines on Conflicts of Interest in International Arbitration §2 (Council of the Int'l Bar Ass'n 2004).

6. Code of Sports-related Arbitration (Court of Arbitration for Sport (CAS) Regulations §S18 (2010).

7. Report of Working Group III (Investor-State Dispute Settlement Reform), Third Version of the Draft Code of Conduct for Adjudicators in Investor-state Dispute Settlement, U.N. Doc. A/CN.9/1004 (22 September 2021).

8. Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-eighth session (Vienna, 14-18 October 2019), Draft Code of Conduct for Adjudicators in Investor-state Dispute Settlement, art. 6, U.N. Doc. A/CN.9/1004 (23 October 2019).

9. J. Brubaker, The Judge Who Knew Too Much: Issue Conflicts in International Adjudication, 26 Berkeley Journal of International Law 111 (2008).

10. Malcolm Langford et al., The Revolving Door in International Investment Arbitration, Journal of International Economic Law 1, 1-26 (2017).

11. Eiser Infrastructure Limited and Energia Solar Luxembourg S.A.R.L v. Kingdom of Spain, ICSID Case ARB/13/36, (2013).

12. Telekom Malaysia Berhad v. The Republic of Ghana, PCA Case No. 2003-03, (2003).

13. Consortium R.F.C.C. v. Kingdom of Morocco, ICSID Case No. ARB/00/6, (2000).

14. ICSID Convention, Regulations and Rules,1966, 575 UNTS 159.

15. Malcolm Langford et al., The Revolving Door in International Investment Arbitration, Journal of International Economic Law 1, 1-26 (2017).

16. Yves Dezalay and Bryant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, Chicago University Press 20, (1996).

17. Sergio Puig, Social Capital in the Arbitration Market, 25 European Journal of International Law 387 (2014).

18. Sergio Puig, Social Capital in the Arbitration Market, 25 European Journal of International Law 387 (2014).

19. Malcolm Langford et al., The Revolving Door in International Investment Arbitration, Journal of International Economic Law 1, 1-26 (2017).

20. Joseph Mamounas, ICCA 2014. Does "Male, Pale, and Stale" Threaten the Legitimacy of International Arbitration? Perhaps, but There's No Clear Path to Change, Kluwer Arbitration Blog (Aug. 24, 2020, 10:55 PM)

21. Vanina Sucharitkul, ICSID and UNCITRAL Draft Code of Conduct: Potential Ban on Multiple Roles Could Negatively Impact Gender and Regional Diversity as well as Generational Renewal, Kluwer Arbitration Blog, ( Aug.28, 2020 11:20 PM), http://arbitrationblog.kluwerarbitration.com/2020/06/20/icsid-and-uncitral-draft-code-of-conduct-potential-ban-on-multiple-roles-could-negatively-impact-gender-and-regional-diversity-as-well-as-generational-renewal/.

22. María Angélica Burgos, Double Hatting in International Commercial Arbitration, Kulwer Arbitration Blog (January 4, 2021) http://www.kluwerarbitration.com/document/kli-ka-40under40-2018-010-n?q=double%20hatting.

23. John R. Crook, Dual Hats and Arbitrator Diversity: Goals in Tension, 113 AJIL Unbound 284 (2019).

24. Chiara Giorgetti, Independence and Impartiality in Investment Dispute Settlement: Assessing Challenges and Reform Options, 21 Journal of World Investment and Trade, 3-35 (2020).

25. Netherlands draft model BIT, Global Arbitration Review, (Feb. 22, 2021 1:45 AM), https://globalarbitrationreview.com/digital_assets/820bcdd9-08b5-4bb5-a81e-d69e6c6735ce/Draft-Model-BIT-NL-2018.pdf

26. Comprehensive Economic and Trade Agreement, art. 8.30.1, Jan. 14, 2017, L 11/23.

27. Gordon, K. &J. Pohl, Investment Treaties over Time - Treaty Practice and Interpretation in a Changing World (OECD Working Papers on International Investment, 2015/02, 2015), http://dx.doi.org/10.1787/5js7rhd8sq7h-en

28. ICSID Convention, Regulations and Rules,1966, 575 UNTS 159.

29. Report of Working Group III (Investor-State Dispute Settlement Reform), Third Version of the Draft Code of Conduct for Adjudicators in Investor-state Dispute Settlement, U.N. Doc. A/CN.9/1004 (22 September 2021).

30. Report of Working Group III (Investor-State Dispute Settlement Reform), Second Version of the Draft Code of Conduct for Adjudicators in Investor-state Dispute Settlement, U.N. Doc. A/CN.9/1004 (19 April 2021).

31. Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, Version 2, ¶ 2 (April 19, 2021), https://icsid.worldbank.org/sites/default/files/draft_code_of_conduct_v2_en_final.pdf.

32. Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, Version 2, ¶ 2 (April 19, 2021), https://icsid.worldbank.org/sites/default/files/draft_code_of_conduct_v2_en_final.pdf.

33. Report of Working Group III (Investor-State Dispute Settlement Reform), Third Version of the Draft Code of Conduct for Adjudicators in Investor-state Dispute Settlement, U.N. Doc. A/CN.9/1004 (22 September 2021).

34. Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-eighth session (Vienna, 14-18 October 2019), Draft Code of Conduct for Adjudicators in Investor-state Dispute Settlement, comment 67. U.N. Doc. A/CN.9/1004 (23 October 2019).

35. Mohit Tanwar, Addressing the Inadequacies: A New Multi-Faceted Solution to Double Hatting in ISDS, LSE Law Review (2021)

36. 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, Queen Mary University of London (March 16, 2021, 8:40 PM), http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf.

37. 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, Queen Mary University of London (March 16, 2021, 8:40 PM), http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf.

38. María Angélica Burgos, Double Hatting in International Commercial Arbitration, Kulwer Arbitration Blog (March 4, 2021, 8:00 AM) http://www.kluwerarbitration.com/document/kli-ka-40under40-2018-010-n?q=double%20hatting.

39. About Us, Arbitrator Intelligence (Sept. 26, 2020 4:48 AM), https://arbitratorintelligence.com/about/.

40. SIAC Signs Cooperation Agreement with Arbitrator Intelligence, SIAC, (June 1, 2017), https://siac.org.sg/69-siac-news/535-siac-signs-cooperation-agreement-with-arbitrator-intelligence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.