ISSUE CONFLICTS IN INVESTMENT TREATY ARBITRATION: A MOVE TOWARDS STRICTER APPLICATION OF IMPARTIALITY STANDARDS? (PART 3 OF A 3 PART SERIES)

by Kuda Tshiamo*[1]

 

 PART 1 :: PART 2 :: PART 3

 

  1. THIRD PARTY APPROACH: HAVE THEY INTRODUCED A NEW STANDARD?

From the previous publications on this issue, particularly a close review of case law on issue conflicts, one may conclude that it appears that the recent trend is to consider what a by-stander or a third party would believe in the circumstances. Has this always been the test? No, the text of the treaties and guidelines considered in the previous blogs has shown that the test did not envisage a third party inquiry. Nowhere in the text of these treaties is it succinctly and explicitly stated that what a reasonable and informed third party would make of the appointment of an arbitrator should be a primary factor in determining his or her suitability as an arbitrator.
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