This week, UNCITRAL Working Group III will consider the Draft Arbitrator Code of Conduct. They will be looking at proposed Article 3(2)(a), pursuant to which the obligation to remain independent and impartial would also “encompass the obligation not to: (a) be influenced by self-interest, fear of criticism, outside pressure, political considerations, or public clamour.” (https://undocs.org/en/A/CN.9/WG.III/WP.209)
This text could modernize and improve the independence and impartiality analysis. Adoption of this language could also implicate Arbitrator Intelligence’s reporting (at least!). This language would enable Parties to argue about whether soliciting Arbitrator Intelligence reviews (actively or passively, by allowing a Report about oneself to be sold) would be a reason to question an arbitrator’s independence or impartiality.
Rather, Arbitrator Intelligence’s reporting depends on Arbitrators pleasing the participants so much that they want to take the time to write out a questionnaire (AIQ) following procedures. I have published that this risks tilting the scales in favor of Claimant parties because Claimant teams have more groups of people who can complete reports (third party funders, parties, and counsel) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3839008). Arbitrator Intelligence expressly does not use negative reports or negative responses (https://www.youtube.com/watch?v=8RMe6BZcfTk) (starting at Second 26).
One group pledges to fill out AIQs: Members. Simply by virtue of their membership, Members communicate to the Arbitrators that they are going to fill out a report following the proceedings, “yes, dear Arbitrator – good or bad, true or false, I am going to complete an AIQ on you, and the resulting Report could be used to make a career-changing report for you.”
This communication could be the real value of Arbitrator Intelligence membership, for Members. While Members get reduced prices on Reports, how valuable is an unedited, unreviewable report that Arbitrator Intelligence expressly does not have the staffing or resources to verify or police? (https://www.youtube.com/watch?v=8RMe6BZcfTk)(starting at Second 26). At best, the Reports are errand-makers, sending counsel on a quest to chase down whether one can really be a co-arbitrator in a fast-track ad hoc ICSID procedure (https://www.youtube.com/watch?v=8RMe6BZcfTk).
For Arbitrators, Arbitrator Intelligence Reports are valuable – they afford one the opportunity to manufacture a career or positive reputation – higher prices for the Reports translates to more prestige in billing, at least! The Reports are viewed so positively that they have already successfully helped secure one arbitrator’s release from prison! (https://ciarglobal.com/cantuarias-suma-mas-apoyos-la-iba-el-cea-y-catherine-rogers-condenan-el-trato-recibido-por-el-arbitro-peruano/)
The proposed language prohibiting arbitrators from being “influenced by self-interest, fear of criticism, outside pressure, political considerations, or public clamour” would be positive for arbitration and its reputation – encouraging Arbitrators to decide matters based on their merits, and not based on the potential for later reviews, seems positive. Can any of us say that we want the opposite of Arbitrators?
One must wish UNCITRAL Working Group III the best of luck in their discussions on this issue and remain optimistic that the text will remain in the Draft Code.
But, one cannot help but notice that the employer for the UNCITRAL Working Group III Chair is a Member of Arbitrator Intelligence. Canada’s Department of Foreign Affairs, Trade, and Development was the first state party to become a Member and has agreed to provide feedback on arbitrators appointed in its cases: (https://arbitratorintelligence.com/the-department-of-foreign-affairs-trade-and-development-of-the-government-of-canada-has-become-a-member-of-arbitrator-intelligence/).
Arbitrator Intelligence Founder Catherine Rogers has stated that she will participate in the discussions.
One might wonder whether any of Arbitrator Intelligence’s investors or anyone else with a financial stake in Arbitrator Intelligence will participate.
Transparency might require that before anyone speaks on this issue at UNCITRAL Working Group III, they disclose whether they or their companies are members and whether they or their companies are investors.
It would be ironic if a Code of Conduct debate were derailed by conflicts of interest!
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