Independence and Impartiality of Adjudicators in Investment Dispute Settlement: Assessing Challenges and Reform Options

Abstract

As discussions on the reform of investor-State dispute settlement deepen and gather momentum at the United Nations Commission on International Trade Law (UNCITRAL), this article delves into a specific and fundamental issue: The requirement that adjudicators in investment disputes are and remain independent and impartial. It begins by explaining the principle of independence and impartiality in international courts and tribunals, with a focus on arbitral institutions. The article then highlights a range of specific concerns that the present system of investor-State arbitration raises in respect of independence and impartiality. Finally, it provides a comparative analysis of how different reform proposals presently discussed within UNCITRAL Working Group III would fare in terms of delivering a dispute resolution mechanism that ensures independence and impartiality. Rather than providing one specific solution, this article assesses the different options discussed, with the aim to help both policy-makers considering reform and other stakeholders and scholars.