Ex Pluribus Unum? On The Form and Shape of a Common Code of Ethics in International Litigation

Abstract

In April 2019, member-states of UNCITRAL Working Group III requested the UNCITRAL Secretariat to undertake preparatory work for a Code of Conduct for Investor-State Dispute Settlement focusing on the implementation and enforceability of such a code. This groundbreaking development signals that, for the first time, a consensus exists that a code of ethics for Investor-State dispute settlement is desirable and needed. This contribution addresses three threshold questions that such preparatory work raises, namely: the preferred form of the code, the code's substantive reach, and the optimal process for bringing a code to fruition. As set out below, we urge that states adopt a mandatory common code of ethics for disputes involving states, and that arbitral institutions adopt this code as part of their rules for administering arbitration.