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ดุลพาห

(3) Ethical Standards

(a) Conflict of Interest

An issue that has faced a high level of scrutiny regrading arbitrator

ethics is the so called “double hatting”, where an individual acts as counsel in
an investment arbitration and also sits as arbitrator on another case concerning
a similar issue. The perceived concern is that the arbitrator who also acts as

counsel may try to influence the outcome of the case towards a resolution

which will later be favourable to the case in which he or she acts as counsel
on the similar issue.

To prevent the perceived concern arising from “double hatting”, the
ICS has set forth standard rules prohibiting Tribunal Members from acting as
62
counsel, as well as other ethics obligations on independence and impartiality.
The TTIP proposal requires Judges and Members of the Appeal Tribunal to be

“persons whose independence is beyond doubt” and they must also “refrain
from acting as counsel or as party-appointed expert or witness any pending
63
or new investment protection dispute”. Under Article 8.30 (1) of the CETA,
Tribunal Members “shall refrain from acting as counsel or as party-appointed

expert or witness in any pending or new investment dispute” under the CETA
or any other international agreement. Moreover, Tribunal Members must not
64
be affiliated with any government, take instructions from any organisations, or
65
government in regards to the dispute. The CETA does not yet annex a Code
of Conduct for Tribunal Members, although Article 8.44 (2) provides for the
Committee on Services and Investment to adopt such a code in the future to

62. Article 30(1) of the CETA; Article 14(1) of the EU-Vietnam FTA; Article 11 of the TTIP.
63. Article 11(1) of the TTIP.
64. Footnote 10 clarifies that the fact that a person receives renumeration from the government
does not itself disqualify the person.
65. Article 8.30(1) of the CETA.

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