Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel

The document analyzes the legitimacy crisis in investor-State arbitration caused by the 'dual role' of individuals acting as both impartial arbitrators and partisan counsel. It reviews the arbitration rules of ICSID, UNCITRAL, ICC, and SCC, finding that while they require independence, their application is inconsistent and often lacks transparency. The paper highlights specific cases where concurrent service led to challenges, and compares these to stricter standards in the International Court of Justice (ICJ) and the Court of Arbitration for Sport (CAS). It concludes by recommending a clear proscription against concurrent service, suggesting reforms through rule amendments, institutional interpretations, revised IBA Guidelines, or express provisions in International Investment Agreements (IIAs).

• Investor-State arbitrations lack common institutional safeguards found in national judicial systems, such as security of tenure, objective assignment mechanisms, and transparency of proceedings, which undermines the legitimacy of the process.
• The dual role of arbitrator and counsel creates two primary risks: the temptation for an arbitrator to draft decisions that advance a client's interests in another case, and the potential for 'cross-appointments' within a small professional community.
• While different arbitration rules use varying language—such as the ICSID Convention's 'independent judgment' versus UNCITRAL's 'impartiality' and 'independence'—the standards for judging challenges have become largely uniform in practice.
• The ICSID 'manifest lack' standard for disqualification is often interpreted as a higher threshold for successful challenges than the UNCITRAL 'justifiable doubts' test, placing a heavy burden of proof on the challenging party.
• The IBA Guidelines on Conflicts of Interest are widely used as guidance but are criticized for relaxing protections by stating that a law firm's activities do not automatically constitute a conflict for an individual arbitrator.
• The International Court of Justice (ICJ) and the Court of Arbitration for Sport (CAS) have implemented stricter rules to prevent the dual role; the ICJ uses a three-year 'stand-down' period, and the CAS prohibits arbitrators from acting as counsel before the CAS.
• The paper argues that the dual role is particularly problematic in treaty-based arbitration because these cases frequently revolve around a small, limited set of legal issues, making the risk of issue conflicts high.
• To resolve these conflicts, the author proposes that no person should be appointed as an arbitrator in a treaty-based investor-State dispute if they are concurrently acting as counsel in another such dispute.

APA

Bernasconi-Osterwalder, N., Johnson, L., & Marshall, F. (2011). Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/dci_2010_arbitrator_independence.pdf

Chicago

Bernasconi-Osterwalder, Nathalie, Lise Johnson, and Fiona Marshall. Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel. International Institute for Sustainable Development, 2011. https://www.iisd.org/system/files/publications/dci_2010_arbitrator_independence.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |last2=Johnson |first2=Lise |last3=Marshall |first3=Fiona |title=Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel |publisher=International Institute for Sustainable Development |date=2011 |url=https://www.iisd.org/system/files/publications/dci_2010_arbitrator_independence.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2011arbitrator, author = {Bernasconi-Osterwalder, Nathalie and Johnson, Lise and Marshall, Fiona}, title = {{Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel}}, institution = {International Institute for Sustainable Development}, year = {2011}, url = {https://www.iisd.org/system/files/publications/dci_2010_arbitrator_independence.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }