Political Success, Legal Failure? Double-Hatting in Investment Arbitration Reform

Malcolm Langford

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Chapter 3 Political Success, Legal Failure? Double-Hatting in Investment Arbitration Reform

In: Ethics and Investor-State Dispute Settlement

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Malcolm Langford

Malcolm Langford
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Type:: Chapter

Pages:: 42–67

DOI:: https://doi.org/10.1163/9789004735743_004

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Abstract

Regulation of ‘double-hatting’ by arbitrators as legal counsel has been one of the most contentious issues in the UNCITRAL investment arbitration reform process. After five years of debate, the practice is now regulated in a new UNCITRAL/ICSID code of conduct for arbitrators. Nonetheless, the negotiation of the double hatting clause can be best regarded as a political success, but legal failure. While the high-level political attention afforded by UNCITRAL generated renewed attention and awareness about the risk of arbitral conflicts of interests, the Code does little legally to address the core area of concern: that an arbitrator can draft an effective precedent in one case to help their litigation of a case in another. The formalist legal solution embedded in the Code belies the reality of how ISDS functions in practice. This chapter proceeds by first examining the concerns, extent, and causes of double hatting, which is followed by a description and analysis of the reform debates and process and then an empirical analysis of the Code’s likely political and legal effects.

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Ethics and Investor-State Dispute Settlement

Series: Nijhoff International Investment Law Series, Volume: 29

E-Book ISBN:: 9789004735743

Publisher:: Brill | Nijhoff

Print Publication Date:: 09 May 2025

Subjects
- International Law
  - International Law: General Interest
  - International Dispute Resolution & Arbitration

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Chapter 3 Political Success, Legal Failure? Double-Hatting in Investment Arbitration Reform

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Ethics and Investor-State Dispute Settlement

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