I. CURRENT REGULATION OF “MULTIPLE ROLES” IN INTERNATIONAL ARBITRATION
A. Definition and Occurrence of “Multiple Roles” in International Arbitration
In today’s international arbitration community, it is not uncommon—in fact it is rather the norm—to see practitioners starting off their career in arbitration by working at law firms as party-representatives in both commercial and investor-State arbitrations. It is usually only after many years of such counsel work that they start to receive their first arbitrator appointments, and if they are lucky, they can pivot to full arbitrator work at a later stage of their career. A side effect of this unofficial training of arbitrators through prior and concurrent counsel work consists in individuals acting in “multiple roles”, meaning both as counsel and arbitrator, either simultaneously or within a short period of time. According to a 2017 study, in 47% of 1077 examined investor-State cases, at least one of the appointed arbitrators was simultaneously acting as legal counsel in at least one other investor-State proceeding. To a lesser extent, this also happens with regard to experts or witnesses, as experienced counsel and/or arbitrators can be asked to act as experts on specific questions of law or to testify on specific facts.
B. Current Regulation of “Multiple Roles”
For a long time there had not been any specific rules on limiting multiple roles, also called “double-hatting”, in either bilateral or multilateral investment protection treaties or arbitration rules.