The opinions expressed in this chapter are those of the authors and do not purport to reflect the opinions or views of ICSID. The authors thank their colleagues for their valuable input on this chapter, with a special thanks to Daniela Arguello, Ana Conover and Phoebe Ngan. This chapter has been developed from the ICSID Background Paper on Repeat Appointments, released in February 2021, which was written in connection with the drafting of the ICSID-UNCITRAL Code of Conduct. The Background Paper is available at https://icsid.worldbank.org/sites/default/files/Background_Papers_Repeat_Appointments_final_25.2.2021.pdf.
On the topic generally, see Luke A Sobota, ‘Repeat Arbitrator Appointments in International Investment Disputes’ in Chiara Giorgetti (ed), Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals (Brill, 2015), 293;
Houchih Kuo, ‘The Issue of Repeat Arbitrators: Is It a Problem and How Should the Arbitration Institutions Respond?’ (2011) 4 Contemporary Asia Arbitration Journal 247.
See, among others, Shaun Palmer, ‘Repeat Arbitrators: Why Are They an Issue?’, (2015) 4 European International Arbitration Review 17, 18.
See Section 3 below.
Chiara Giorgetti, ‘The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement: A Low-Hanging Fruit in the ISDS Reform Process’, (2023) 14, Journal of International Dispute Settlement 176, 183–185.
United Nations Commission on International Trade Law ‘Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fifth session (New York, 23–27 April 2018)’ (14 May 2018), UN Doc A/CN.9/935, para. 56.
For a detailed discussion of this concern, see Daphna Kapeliuk, ‘The Repeat Appointment Factor: Exploring Decision Patterns of Elite Investment Arbitrators’ 96 (2010) Cornell L Rev 47.
United Nations Commission on International Trade Law, Working Group III (Investor-State Dispute Settlement Reform), ‘Possible reform of investor-State dispute settlement (ISDS): Ensuring independence and impartiality on the part of arbitrators and decision makers in ISDS’ (30 August 2018) UN Doc A/CN.9/WG.III/WP.151, para. 22.
See ‘Report of Working Group III on the work of its thirty-fifth session’ (n 6), para. 73.
Kapeliuk (n 7), 68.
See also ‘Report of Working Group III on the work of its thirty-fifth session’ (n 6), paras. 73–74.
Kapeliuk (n 7) 60.
To this effect, see e.g. ‘ICSID-UNCITRAL Draft Code of Conduct: Comments by Article & Topic as of January 14, 2021’, 148–152, comments from public stakeholders on draft art 8(2).
Kapeliuk (n 7) 68.
Kapeliuk (n 7) 90.
See e.g. the analysis of Shaun Palmer (n 3) 35–36, 39–40.
The data included relates to appointments made during fiscal years 2018 to 2022 (i.e. between 1 July 2017 and 30 June 2022), which are the five years immediately preceding the date on which the 2022 ICSID Rules and Regulations took effect.
ICSID and UNCITRAL Code of Conduct for Arbitrators in International Investment Dispute Resolution and commentary (2023) (“Code of Conduct”) https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/2318824e-coc_arbitrators _ebook_11june.pdf (art 11).
ICSID, ‘Arbitrator Declaration’ (effective 15 February 2023) https://icsid.worldbank.org/rules-regulations/declarations.
Appointments made by ICSID, by co-arbitrators or by the disputing parties jointly have been excluded from the calculations.
As noted above (n 1), this chapter is developed from the Background Paper that was prepared in the course of the development of the ICSID and UNCITRAL Code of Conduct.
See e.g. Tidewater Investment SRL and Tidewater Caribe, CA v Bolivarian Republic of Venezuela, ICSID Case No ARB/10/5, Decision on Claimants’ Proposal to Disqualify Professor Brigitte Stern, Arbitrator, 23 December 2010 (The Claimants proposed the disqualification of Professor Brigitte Stern on the basis of her multiple appointments (four times) by the same party (Venezuela) and (three times) by the same counsel (Curtis, Mallet‐Prevost, Colt & Mosle LLP));
Universal Compression International Holdings, SLU v Bolivarian Republic of Venezuela, ICSID Case No ARB/10/9, Decision on the Proposal to Disqualify Prof Brigitte Stern and Prof Guido Santiago Tawil, Arbitrators, 20 May 2011 (The Claimant proposed the disqualification of Professor Brigitte Stern on the basis that her multiple appointments by Venezuela and its counsel);
Burlington Resources, Inc v Republic of Ecuador, ICSID Case No ARB/08/5, Decision on the Proposal for Disqualification of Professor Francisco Orrego Vicuña, 13 December 2013 (The Respondent invoked Professor Orrego Vicuña’s repeat appointments as arbitrator by Freshfields law firm, and his non-disclosure of these appointments, in its disqualification proposal);
OPIC Karimum Corporation v Bolivarian Republic of Venezuela, ICSID Case No ARB/10/14, Decision on the Proposal to Disqualify Professor Philippe Sands, Arbitrator, 5 May 2011 (The Claimant proposed to disqualify Professor Philippe Sands on the basis that he had developed a financial dependence due to his multiple appointments as arbitrator by Respondent State and by its counsel);
Caratube International Oil Company LLP and Devincci Salah Hourani v Republic of Kazakhstan (II), ICSID Case No ARB/13/13, Decision on the Proposal for Disqualification of Mr Bruno Boesch, 20 March 2014 (The Claimants proposed the disqualification of Mr Bruno Boesch (i) because of his numerous appointments as arbitrator by Curtis, Mallet-Prevost, Colt & Mosle LLP and the Respondent; and (ii) because he served as arbitrator appointed by the same firm on behalf of the Respondent in the case of Ruby Roz Agricol LLP v Kazakhstan);
Elitech BV and Razvoj Golf DOO v Republic of Croatia, ICSID Case No ARB/17/32, Decision on the Proposal for Disqualification of Professor Brigitte Stern, 23 April 2018 (The Claimants proposed the disqualification of Professor Brigitte Stern because of her prior appointment by the Respondent in three other investment arbitrations between February 2014 and November 2016, which were all pending at the time),
Raiffeisen Bank International AG and Raiffeisenbank Austria dd v Republic of Croatia, ICSID Case No ARB/17/34, Decision on the Proposal to Disqualify Stanimir Alexandrov, 17 May 2018 (The Respondent proposed to disqualify Dr Stanimir Alexandrov because he was appointed by claimants in 35 cases out of the total 38 known investment treaty arbitrations in which he had sat as an arbitrator at the time. The Respondent further noted that Dr Alexandrov was the president of the tribunal in two cases, both of which were decided in favor of the claimant, and that he was only appointed once by a respondent, more than ten years prior to this proceeding),
Canepa Green Energy Opportunities I, Sárl and Canepa Green Energy Opportunities II, Sárl v Kingdom of Spain, ICSID Case No ARB/19/4, Decision on the Proposal to Disqualify Mr Peter Rees QC, 19 November 2019 (The first ground for disqualification by the Respondent was that Mr Peter Rees lacked independence or impartiality because he (i) failed to disclose that he had been previously appointed by the same firm in two high-profile cases, and (ii) had been appointed in three cases by the same firm);
Ayat Nizar Raja Sumrain and others v State of Kuwait, ICSID Case No ARB/19/20, Decision on the Claimants’ Proposal to Disqualify Prof Zachary Douglas and Mr VV Veeder, 2 January 2020 (The Claimants proposed the disqualification of Professor Zachary Douglas (President appointed by agreement of the parties) because: (i) he was simultaneously sitting as an arbitrator appointed by the Respondent in another pending ICSID proceeding; and (ii) he had been appointed mainly by States in the cases in which he had served as arbitrator);
VM Solar Jerez GmbH and others v Kingdom of Spain, ICSID Case No ARB/19/30, Decision on the Proposal to Disqualify Prof Dr Guido Santiago Tawil, 24 July 2020 (The first ground invoked in Spain’s proposal for disqualification of Prof Tawil related to his multiple appointments by investors in other cases against the Respondent addressing similar issues as this arbitration),
Mr Bob Meijer v Georgia, ICSID Case No ARB/20/28, Decision on The Proposal to Disqualify Professor Dr Klaus Sachs, 15 July 2021 (The Claimant proposed the disqualification of Professor Sachs due to his concurrent appointments in the ICSID case and related ICC arbitration as well as his repeated appointments by the Respondent and his Counsel).
See e.g. OPIC v Venezuela (n 21);
Canepa v Spain (n 21);
VM Solar v Spain (n 21).
See e.g. Caratube v Kazakhstan (II) (n 21);
Elitech v Croatia (n 21).
See Burlington v Ecuador (n 21);
Caratube v Kazakhstan (II) (n 21).
The challenge in Caratube was ultimately upheld on the ground of issue conflict. See Caratube v Kazakhstan (II) para. 90.
An example of an exception is the Decision on the Disqualification Proposal in Ayat Nizar Raja Sumrain and others v State of Kuwait (n 21), in which a challenge was brought against the presiding arbitrator who had been appointed by party agreement.
Ibid. This is based on decisions that were publicly available as of 28 February 2021.
Tidewater v Venezuela (n 21) para. 64.
Universal v Venezuela (n 21) paras. 77–87;
Canepa v Spain (n 21) para. 63;
Ayat Nizar v Kuwait (n 21), paras. 125–126;
VM Solar v Spain (n 21) para. 92.
VM Solar v Spain (n 21) para. 92;
Elitech v Croatia (n 21) para. 52,
Ayat Nizar v Kuwait (n 21) paras. 125–126.
OPIC v Venezuela (n 21) para. 18 et seq;
Canepa v Spain (n 21) para. 63.
Raiffeisen v Croatia (n 21) para. 89;
Ayat Nizar v Kuwait (n 21) para. 120.
See for example Raiffeisen v Croatia (n 21), para. 91 referring to the decision in Caratube v Kazakhstan (II) (n 21).
Tidewater v Venezuela (n 21) para. 59. See, in the same vein, the analysis by Shaun Palmer (n 3) p 31 et seq. [Cf OPIC v Venezuela para. 47: “The suggestion by the arbitrators in Tidewater that multiple appointments are likely to be explicable on the basis of a party’s perception of the independence and competence of the oft appointed arbitrator is in our view unpersuasive. In a dispute resolution environment, a party’s choice of arbitrator involves a forensic decision that is clearly related to a judgment by the appointing party and its counsel of its prospects of success in the dispute. In our view, multiple appointments of an arbitrator are an objective indication of the view of parties and their counsel that the outcome of the dispute is more likely to be successful with the multiple appointee as a member of the tribunal than would otherwise be the case.”].
International Bar Association, Guidelines on Conflict of Interest in International Arbitration (23 October 2014, updated in May 2024) https://www.ibanet.org/document?id=Guide lines-on-Conflicts-of-Interest-in-International-Arbitration-2024 (‘IBA Guidelines’).
For a comparison of both versions of the IBA Guidelines (2014 and 2024), see https://www .ibanet.org/document?id=Guidelines-on-Conflicts-of-Interest-in-International-Arbitra tion-comparison-2014–2024.
See for example Raiffeisen v Croatia (n 21)
Ayat Nizar v Kuwait (n 21).
Raiffeisen v Croatia (n 21) para. 87.
Ayat Nizar v Kuwait (n 21) para. 44.
Raiffeisen v Croatia (n 21) para. 89;
Ayat Nizar v Kuwait (n 21) paras. 125–26.
See e.g. Claimant X v Respondent Y (decided by Vice President of the LCIA Court (acting alone), proposal rejected), LCIA Reference No UN101693, Decision Rendered 28 October 2010;
Merck Sharpe & Dohme (I.A.) Corporation v The Republic of Ecuador, PCA Case No 2012-10, Decision on Challenge to Arbitrator Judge Stephen M. Schwebel 8 August 2012;
Valeri Belokon v Kyrgyz Republic, PCA Case No AA518, Decision on Challenges to Arbitrators Professor Kaj Hober and Professor Jan Paulsson, 6 October 2014.
In the ICC case ADC v Georgia, which is in relation to ICSID case Meijer v Georgia, the challenge against the arbitrator was upheld on grounds other than his repeated appointments.
Anaklia Development Consortium LLC (ADC) v Georgia, ICC Case No 25542/HBH, Decision on the Disqualification of Arbitrator Klaus Sachs, 25 February 2021 para. 29.
Code of Conduct for Investor-State Dispute Settlement Under Chapter 9 Section B (Investor-State Dispute Settlement) of The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (signed 8 March 2018; entered into force 30 December 2018) point 4 (d) (“Disclosure Obligations”).
Ibid. point 4 (d) (iii).
Ibid. point 6(e).
Ibid. point 4(a).
Ibid. point 4(d).
Ibid. point 3(e) (“Governing Principles”). The United States-Mexico-Canada Agreement (“USMCA”) (signed 30 November 2019, entered into force 1 July 2020) also expressly refers to the IBA Guidelines in its chapter on investment. See art 14.D.6 (5)(a).
Decision No 001/2021 of the CETA Committee on Services and Investment of January 29, 2021, adopting a code of conduct for Members of the Tribunal, Members of the Appellate Tribunal and mediators, arts 3 (“Disclosure Obligations”) and 5 (“Independence and Impartiality of Members”).
EU-Viet Nam Investment Protection Agreement (signed 30 June 2019, entered into force on 1 August 2020), Code of Conduct for Members of the Tribunal, Members of the Appeal Tribunal and Mediators, art 3 (“Disclosure Obligations”).
EU-Singapore Investment Protection Agreement (signed 19 October 2018, entered into force entered into force 21 November 2019), Code of Conduct for Members of The Tribunal, The Appeal Tribunal and Mediators.
Each of these agreements provides for a court-like body, where the adjudicators are not selected directly by the parties in respect of individual disputes, but rather are appointed to multi-year terms and selected for particular cases on a rotating basis. Many of the points discussed regarding repeat appointment as it pertains to ad hoc arbitrators would not be directly applicable in the context of a court. See, for example, Catharine Titi, ‘The European Union’s Proposal for an International Investment Court: Significance, Innovations and Challenges Ahead’, Transnational Dispute Management 14 (1), 2017 (advance publication on 25 May 2016).
Canada Model Bilateral Investment Treaty (2021), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/6341/download, Arbitrator Code of Conduct for Dispute Settlement, art 4.
Appendix to the Arbitrator Code of Conduct for Dispute Settlement: Initial Disclosure Statement Form, para. 3.
Arbitrator Code of Conduct for Dispute Settlement, art 7.
Italy Model Bilateral Investment Treaty (adopted August 2022), art 27.
Italy Model Bilateral Investment Treaty (adopted August 2022), Code of Conduct art 5(2)(a).
Italy Model Bilateral Investment Treaty (adopted August 2022), Code of Conduct art 5(2)(b).
See e.g. ICSID Convention arts14(1), 57;
ICSID Arbitration Rules (2022) r 19(3)(b);
ICSID Arbitration Rules (2006) r 6(2), 9;
UNCITRAL Arbitration Rules (2010) art 11;
Singapore International Arbitration Centre Investment Arbitration Rules (2017) art 10;
Stockholm Chamber of Commerce Arbitration Rules (2020) art 18;
International Chamber of Commerce Arbitration Rules (2021) art 11(1), (2).
ICSID Arbitrator Declaration (n 18).
IBA Guidelines (n 35) ibid. s 3.1.3.
IBA Guidelines (n 35) s 3.2.8.
IBA Guidelines (n 35) s 3.1.3, fn 4.
IBA Guidelines (n 35) p 14 para. 3.
IBA Guidelines (n 35), Explanation to General Standard 3(a) and (c).
See also Practical Application of the General Standards para. 4.
ICSID-UNCITRAL Code of Conduct (n 17).
On the code of conduct, see Natalie Y. Morris-Sharma and Kexian Ng, ‘Reaping the First Fruits of the UNCITRAL ISDS Reform: The Codes of Conduct for Adjudicators’, in Chiara Giorgetti and Catharine Titi (eds), Ethics and Investor-State Dispute Settlement (Brill 2025).
Article 3 of the Code of Conduct reads as follows: 1. An Arbitrator shall be independent and impartial. 2. Paragraph 1 includes the obligation not to: (a) Be influenced by loyalty to any disputing party or any other person or entity; (b) Take instruction from any organization, government, or individual regarding any matter addressed in the IID proceeding; (c) Be influenced by any past, present [or prospective] financial, business, professional or personal relationship; (d) Use his or her position to advance any financial or personal interest he or she might have in any disputing party or in the outcome of the IID proceeding; (e) Assume any function or accept any benefit that would interfere with the performance of his or her duties; or (f) Take any action that creates the appearance of a lack of independence or impartiality.
ICSID-UNCITRAL Code of Conduct (n 17) commentary para. 17.
ICSID-UNCITRAL Code of Conduct (n 17) commentary para. 21.
ICSID-UNCITRAL Code of Conduct (n 17) commentary para. 25.
ICSID-UNCITRAL Code of Conduct (n 17) commentary para. 26.
ICSID-UNCITRAL Code of Conduct (n 17) commentary para. 18.
ICSID-UNCITRAL Code of Conduct (n 17) arts 11(2)(a), (b).
ICSID-UNCITRAL Code of Conduct (n 17) arts 11(2)(c), (d).
ICSID-UNCITRAL Code of Conduct (n 17), commentary para. 88.
ICSID and UNCITRAL, Draft of Code of Conduct for Adjudicators in International Investment Disputes: Version One (May 2020), art 5(2) https://icsid.worldbank.org/sites/default/files/amendments/Draft_Code_Conduct_Adjudicators_ISDS.pdf.
ICSID and UNCITRAL, Draft of Code of Conduct for Adjudicators in International Investment Disputes: Version One (May 2020), art 8(2).
ICSID and UNCITRAL, Draft of Code of Conduct for Adjudicators in International Investment Disputes: Version Two (April 2021), para. 54 https://icsid.worldbank.org/sites/default/files/amendments/Draft_Code_Conduct_Adjudicators_ISDS.pdf.
Compare art 5 of Version One of the Draft Code of Conduct (n 76) with art 10 of Version Two of the Draft Code (n 78).
Draft Code of Conduct: Version Two (n 78) para. 54.
ICSID-UNCITRAL, Draft Code of Conduct for Adjudicators in International Investment Disputes: Version Three (September 2021), paras. 43–45 https://icsid.worldbank.org/sites/default/files/documents/Code_of_Conduct_V3.pdf.
See the ICSID-UNCITRAL Code of Conduct (n 17) art 5 and its commentary, para. 42.
