NEWSLETTER-2020-metin

217 ARBITRATION LAW repeat appointments is that an adjudicator who is repeatedly appointed by the same counsel, client, or party develops a financial dependence, as well as a bias in favor of the appointing party. Repeat appointments do not only apply for arbitrators but also include experts, mediators, and conciliators. The draft Code determines a set of obligations for ad- judicators to make all reasonable efforts to disclose (i) any significant relationship including professional and business relationships with the parties, their subsidiaries, their parent-companies or agencies, the parties’ counsel, adjudicators, experts or third-party funders within the past five years, (ii) any direct or indirect financial interest in the proceeding or its outcome, (iii) all ISDS and any other international arbitration proceedings in which the adjudicator has been involved as counsel, arbitrator, annulment committee member, or expert, and (iv) a list of all publications and relevant public speeches by the adjudicator. Double-Hatting (Article 6) One of the key issues in the draft Code is the regulations on double-hatting. Double hatting refers to the two hats worn by the ad- judicator who acts as both counsel and arbitrator. The commentary section of the draft Code mentions that even though an outright ban is easier to implement, it would exclude a greater number of people than necessary who would have valuable contributions to solving the dispute at hand with their expertise. Article 6 proposes disclosure and recusal as solution to double-hatting. The Code provides that the disclosure or recusal may be considered when the adjudicator partici- pated in a prior proceeding involving (i) the same parties, (ii) the same facts, or (iii) the same treaty. The Code also imposes certain duties to the adjudicators such as, they should ensure their availability to hear the case before accepting any appointment and once appointed, they should refuse competing obligations. The draft also suggests the pos- sibility of limiting the number of investor-state cases that an arbitrator can handle at once to ensure the adjudicators investing enough time to hear the dispute at hand. Conclusion Once the Code of Conduct is finalized, it could guide all of the relevant parties to the investment arbitration as “soft law,” or could be