Professor Andreas R. Ziegler and Dr Jonathan R. Kabré have published Private Counsel and the Proposed Reforms of Investor-State Dispute Settlement (ISDS) in: Fach Gómez Katia (eds.), Private Actors in International Investment Law, Springer (2021).
This chapter examines the impact that ISDS reforms will have on counsel’s activities. More specifically, it discusses two specific amendments namely the establishment of an Advisory Centre on Investment Law (ACIL) and the elaboration of a code of conduct -using the example of the CETA. On one hand, this chapter tries to demonstrate that counsel may benefit from the establishment of the ACIL notably because it will help them to refocus on assisting litigant states and not representing them. Admittedly, this Advisory Centre may provide legal services to litigant parties in the same fashion counsel do. But, and given the number and the length of investment disputes, such a centre cannot be entrusted with the exclusive management of all those disputes. Rather, we advocate in favour of complementary between them as it has occurred for the World Trade Organization (WTO) with the Advisory Centre of WTO Law (ACWL) and the roster of counsel.
On the other hand, most recent investment agreements have tackled the issue of ethics with the inclusion of provisions regulating the double-hatting and the adoption of a code of ethics for arbitrators. Even if these amendments are primarily directed towards arbitrators, they may be indirectly applicable to counsel in some cases as it will be discussed. We will conclude with some recommendations regarding the negotiations currently going on at UNCITRAL.