Publish time: 2022-1-20
The Beijing Arbitration Commission / Beijing International Arbitration Center (the “BAC”) hereby releases its Panel of Arbitrators for International Investment Arbitration and Code of Conduct for Arbitrators in International Investment Disputes, which will become effective as of January 1, 2022, and hereby presents a concise introduction of the two documents:
1. Background of Making Panel of Arbitrators for International Investment Arbitration
The BAC Rules for International Investment Arbitration has been effective since October 1, 2019. As stipulated in Article 9 (1) of its Rules for International Investment Arbitration, the BAC shall maintain a “Panel of Arbitrators for International Investment Disputes”, and arbitrators may be nominated by the parties from either within or outside the panel.
As per such requirement, and with the vision of providing professional and qualified investment arbitration services to investment arbitration users from all over the world, the BAC initiated the making of its Panel of Arbitrators for International Investment Arbitration in 2020. During the past two years, the BAC carefully selected experts with extensive international investment arbitration experience as members of the Panel.
2. Key considerations in making Panel of Arbitrators for International Investment Arbitration
There are currently 108 arbitrators from 49 countries and regions listed in the Panel of Arbitrators for International Investment Arbitration, among whom 19 are from mainland China, 4 are from Hong Kong SAR, and the remaining 85 are of foreign nationalities. The key considerations for selecting the arbitrators are as follows:
2.1 Regional balance. Candidates are considered based on their geographical representation, with an emphasis on those from developing economies and countries along the Belt and Road.
2.2 Occupation diversity. Given the wide criticism on the switching of roles between individuals acting as counsel and arbitrator (Double-hatting) within the international community, the panel weighs different occupations of arbitrators, and as a result, non-lawyer arbitrators take up a major proportion of 51.61%.
2.3 Gender equality. In response to the concerns from international community for lack of female arbitrators’ participation in investment arbitration, the panel intends to include more female arbitrators, which accounts for 29.63% of all arbitrators listed in the panel.
2.4 Practical consideration. Candidates who are unable to ensure effective and efficient handling of cases due to objective causes such as their workload or ages are not listed in the panel.
3. The Background of Making Code of Conduct for Arbitrators in International Investment Disputes
In recent years, international investment arbitration has faced unprecedented legitimacy crisis. Concerns about arbitrators’ independence, impartiality, professional competence and relevant decision-makings are considered to be the significant causes of this crisis. The current code of conduct for arbitrators applied in investment arbitration is not tailor-made for international investment disputes. On the one hand, there rules are originally formulated for international commercial arbitration. On the other hand, code of conduct adopted in international investment treaties are not universally applied as limited by the length of the agreements and varied concerns of different contracting states. Therefore, the Code of Conduct for Arbitrators in International Investment Disputes endeavors to refine and enhance the requirements of arbitrators’ conduct in international investment disputes from the perspective of arbitration institution, and thereby boost the parties’ confidence in investment arbitration specifically.
The Code of Conduct for Arbitrators in International Investment Disputes is the standard that arbitrators must abide by in international investment arbitration cases administered by the BAC. However, the Code is not a component of the BAC Rules for International Investment Arbitration, but a separate document. It applies not only to all arbitrators in international investment arbitration cases administered by the BAC, but also to members of the Appellate Tribunal in international investment arbitration appeals administered by the BAC.
The Code of Conduct for Arbitrators in International Investment Disputes aims to be both practical and pioneering. For one thing, the Code is made as detail-oriented and feasible as possible, so as to practically regulate conduct of arbitrators in international investment disputes. For another, the Code has drawn from a wide array of existing rules, fully reflecting the status quo of international practice, providing reasonable forward planning, and responding to concerns about impartiality and independence of arbitrators under the existing international investment arbitration framework.
4. Highlights of Code of Conduct for Arbitrators in International Investment Disputes
The Code of Conduct for Arbitrators in International Investment Disputes contains the following key points: (1) Qualification; (2) Independence and Impartiality; (3) Disclosure; (4) Anti-corruption; (5) Confidentiality; (6) Diligence and Efficiency; (7) Other requirements. These contents have fully reflected the essential requirements of the international investment community for conduct of arbitrators. Yet the Code does not stop there, but makes further innovations on arbitrators’ performance of duties and obligation of disclosure. For example, to make sure that arbitrators have sufficient competence to evaluate the possible influence of investment arbitration on host states, it emphasizes that the BAC arbitrators in international investment disputes shall have necessary public international law knowledge. Also, the Code requires that arbitrators shall disclose any professional, business or other significant relationship with any third-party funder within the past five years to further guarantee the arbitrators’ independence and impartiality.
It is worth noting that the terms of the Code of Conduct for Arbitrators in International Investment Disputes on independence and impartiality of arbitrators also adopts the provision of the Code of Conduct for Arbitrators in Commercial Arbitration of the BAC, which requires that “an arbitrator shall not act as the party's representatives in arbitration cases administered by the BAC (including cases regarding setting aside or non-enforcement of the BAC arbitral award)”. Therefore, arbitrators listed in panels of both international investment arbitration and commercial arbitration of the BAC shall not act as the party's representatives in investment arbitration and commercial arbitration cases administered by the BAC, as well as cases regarding setting aside or non-enforcement of BAC arbitral awards, either of investment arbitration or of commercial arbitration. This provision not only ensures the consistency of requirements of ethical standards for BAC arbitrators in investment arbitration and in commercial arbitration, but also highlights the BAC’s consistent high standards and stringent requirements for arbitrators listed in its panels, which is an important measure to guarantee the independence and impartiality of arbitrators.
With the official release of its Panel of Arbitrators for International Investment Arbitration and Code of Conduct for Arbitrators in International Investment Disputes, the BAC specifically expresses its appreciation to Prof. Chi Manjiao of University of International Business and Economics and Mr. Ren Qing, Partner of Global Law Office, as members of the Task force on Rules for International Investment Arbitration, for their remarkable contributions to the making of the Panel and the Code.
Meanwhile, the BAC extends sincere thanks to the following professionals and entities who have provided valuable advices on the draft of Code of Conduct for Arbitrators in International Investment Disputes (in the order of the number of strokes in Chinese surnames):
Prof. Li Yuwen, Director of Erasmus China Law Centre, Erasmus School of Law, Erasmus University Rotterdam
Ms. Liu Diwan, Ph.D. candidate of Wuhan University Institute of International Law
Prof. Shan Wenhua, Assistant President, Dean of the School of Law and the School of International Education of Xi’an Jiaotong University
Ms. Lin Yanhua, Partner of Fangda Partners
Ms. Liang Danni, Associate Professor of Sun Yat-sen University School of Law
Mr. Wen Xiantao, Counsel of Department of Treaty and Law of Ministry of Commerce
Mr. Qi Tong, Professor of Wuhan University Institute of International Law
Globe-Law Law Firm
Shenzhen Qianhai DS Legal Capital Co., Ltd. and Legal Capital Research Institute (Shenzhen)
Beijing Arbitration Commission / Beijing International Arbitration Center
December 30, 2021
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