International legal incident

1) ICSID and UNCITRAL update the Draft Code of Conduct for Adjudicators:

On 19 April 2021, the United Nations Commission on International Trade Law (“UNCITRAL”) and the International Centre for Settlement of Investment Disputes (“ICSID”) released an updated version of the draft Code of Conduct for Adjudicators (the “Draft Code”), following feedback and recommendations from State representatives and other stakeholders. This marks the latest effort to provide principles and rules governing issues such as adjudicators’ independence and impartiality, as well as their duty to conduct proceedings with integrity, fairness, efficiency, and civility.

The Draft Code has been developed in the context of UNCITRAL Working Group III reforms on investor-State dispute settlement and proposed amendments to ICSID’s procedural rules.  The first version of the Draft Code, adopted on 1 May 2020, addressed issues such as arbitrator conflicts of interest, limits on multiple roles and the number of cases that can be heard simultaneously, confidentiality, and sanctions for unethical behavior.

First, as regards scope, the updated Draft Code now clarifies that it extends to State-to-State dispute settlement as well as investor-State disputes.

Second, the general duty of diligence now requires adjudicators “to be reasonably available” to the parties and the administering institution during the proceeding. The former version suggested specific limitations on the number of cases that adjudicators could concurrently handle. More generally, adjudicators are obliged to be “independent and impartial”, and must “take reasonable steps to avoid bias, conflict of interest, impropriety, or apprehension of bias” Adjudicators are also required to take “reasonable” steps (rather than “appropriate”, under the previous version) to ensure that their assistants are aware of, and comply with, the Draft Code.

Third, most provisions will apply only for the duration of the proceeding (Article 2), though some will apply indefinitely.  As with the previous version, adjudicators are permanently prohibited from having “ex parte contacts with a party outside those contemplated by rules applicable to the proceeding or consent by the parties” , Under the latest version, arbitrators must not “disclose or use any non-public information concerning, or acquired in connection with, a proceeding except for the purposes of that proceeding.

Fourth, as regards “multiple roles” (known as “double-hatting”), adjudicators are prohibited from acting “concurrently as counsel or expert witness in another international investment dispute” the precise scope of this provision remains to be determined – in particular, whether it would only extend to concurrent adjudicator roles “involving the same factual background and at least one of the same parties or their subsidiary, affiliate or parent entity”.  To reflect “the suggestion that double-hatting could be acceptable with the informed consent of the disputing parties”, the restriction now applies “unless the disputing parties agree otherwise.

Fifth, as regards disclosure obligations, adjudicators must disclose “any interest, relationship or matter that may, in the eyes of the parties, give rise to doubts as to their independence or impartiality, or demonstrate bias, conflict of interest, impropriety or an appearance of bias” The temporal scope for this provision remains unclear, as

disclosure within “the past five years” is marked in the bracketed text.  Lastly, the Draft Code does not prohibit the repeat appointment of adjudicators, though the commentary states that it would not be permissible where “it rises to the level of a lack of independence or impartiality under Article 3”.

Sixth, and finally, in terms of enforcement, it is proposed that adjudicators can be challenged or removed for failing to comply with the Draft Code, save for those provisions on fees and expenses and disclosure duties.

• ACCELERATING PROGRESS ON THE SUSTAINABLE DEVELOPMENT GOALS:-

At the start of 2021, we will have just 10 years left for every nation on earth to deliver on the promise it made to its people to achieve the SDGs by 2030 — a Decade of Action left to deliver a world of greater opportunity and prosperity for everyone on a healthy planet. We face an uphill climb. The pandemic has set back human development by as much as 20 years. Yet at the same time, it has clarified why the SDGs are so important, to begin with — this past year crystallized how interconnected our challenges are.

One burgeoning area of promising activity is the groundswell of subnational actors, as regional governments, cities, states, businesses, networks of young activists and protest movements like Black Lives Matter are pushing the frontiers of sustainable development. They are driving solutions and forging new partnerships, even in the midst of a pandemic. We see evidence of enterprising grassroots efforts at the local level to meet SDG targets. Carnegie Mellon University, for example, launched the first-of-its-kind voluntary university review following a university-wide effort to understand how it’s

teaching, research, and practices contribute — positively or negatively — to the SDGs. Hawaii established its so-called Voluntary Local Review, becoming the first U.S. state to track and report on its SDG progress, mirroring the Voluntary National Review process that country governments undertake. Cities, too, are stepping up. Under the leadership of Mayor Eric Garcetti, Los Angeles announced a new SDG Activities Index, described as “a living encyclopedia” of the people, organizations, and companies advancing the SDGs in Los Angeles. This comes on top of the city’s open-source dashboard tracking local progress on the SDGs, which has become a model for cities around the world.

All over the world — and encouragingly also here in the U.S., as we have seen firsthand among the 20,000-plus members of our United Nations Association of the USA sister organization — local action, local implementation, and local leadership on the SDGs are flowering in exciting ways.

3) Israel-Gaza violence: The conflict explained:-

In 1948, 700,000 Palestinians were expelled from or fled their homes at the hands of militias during the creation of the state of Israel. Hundreds of Palestinian towns and villages were emptied of their populations and destroyed. This tragedy is known as the ‘Nakba’ by Palestinians and heralded decades of displacement, conflict, and persecution. The Nakba is still lived by Palestinian refugee families still displaced 70 years later, many of whom still live in refugee camps across the region, including Lebanon and the occupied Palestinian territory.

On 21 May came after 11 days of fighting, which left at least 255 people dead. Most of those killed were Palestinians in the territory of Gaza, Israel, and Hamas both claimed victory in the latest conflict.

Britain took control of the area known as Palestine after the ruler of that part of the Middle East, the Ottoman Empire was defeated in World War One, The land was inhabited by a Jewish minority and Arab majority.

Violence between Jews and Arabs, and against British rule, also grew. In 1947, the UN voted for Palestine to be split into separate Jewish and Arab states, with Jerusalem becoming an international city.

1948, unable to solve the problem, British rulers left, and Jewish leaders

declared the creation of the state of Israel, Many Palestinians objected and a war followed. Troops from neighboring Arab countries invaded Hundreds of thousands of Palestinians fled or were forced out of their homes in what they call Al-Nakba, or the “Catastrophe”.

Jerusalem was divided between Israeli forces in the West and Jordanian forces in the East. Israel claims the whole of Jerusalem as its capital, while the Palestinians claim East Jerusalem as the capital of a future Palestinian state. The US is one of only a handful of countries to recognize the city as Israel’s capital.

Tensions are often high between Israel and Palestinians living in East Jerusalem, Gaza, and the West Bank. Gaza is ruled by the Palestinian militant group Hamas, which has fought Israel many times. Israel and Egypt tightly control Gaza’s borders to stop weapons getting Hamas. Palestinians in Gaza and the West Bank say they are suffering because of Israeli actions and restrictions.

In short, the situation isn’t going to be sorted out any time soon. The most recent peace plan, prepared by the United States when Donald Trump was president, was called “the deal of the century” by Israel’s then-Prime Minister Benjamin Netanyahu. But it was been dismissed by the Palestinians as one-sided and never got off the ground. Any future peace deal will need both sides to agree to resolve complex issues.

by – Shivangi Ratnam