Annex to CPTPP/COM/2019/D004

CODE OF CONDUCT FOR INVESTOR-STATE DISPUTE SETTLEMENTUNDER CHAPTER 9 SECTION B (INVESTOR-STATE DISPUTESETTLEMENT) OF THE COMPREHENSIVE AND PROGRESSIVE
AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP

1.

Definitions
For the purposes of this Code of Conduct:

arbitrator means a member of a tribunal constituted pursuant to Article 9.22 (Selectionof Arbitrators);
assistant means a person who, under the terms of appointment of an arbitrator, conducts
research or provides support for the arbitrator;
candidate means an individual who is under consideration for selection as an arbitrator
pursuant to Article 9.22 (Selection of Arbitrators);
expert means a person appointed pursuant to Article 9.27 (Expert Reports) or applicablearbitration rules;family member means the spouse of an arbitrator or candidate; or a parent, child,grandparent, grandchild, sister, brother, aunt, uncle, niece or nephew of the arbitrator or
candidate or spouse of the arbitrator or candidate (including whole and half blood
relatives and step relatives); or the spouse of such an individual. Family member also
includes any resident of an arbitrator’s or candidate’s household whom the arbitrator orcandidate treats as a member of his or her family;
Rules means applicable rules pursuant to Article 9.19.4 (Submission of a Claim toArbitration); andstaff, in respect of an arbitrator, means individuals under the direction and control of thearbitrator other than assistants.
2.

Responsibilities to the Process

Each candidate, arbitrator and former arbitrator shall avoid impropriety and theappearance of impropriety and shall observe high standards of conduct so that theintegrity and impartiality of the dispute settlement process is preserved.
3.

Governing Principles(a)Each arbitrator shall be independent and impartial, and shall avoid direct
or indirect conflicts of interest.

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4.

(b)

Each arbitrator and former arbitrator shall respect the confidentiality oftribunal proceedings.

(c)Each candidate or arbitrator shall disclose the existence of any interest,
relationship or matter that is likely to affect the candidate’s or arbitrator’s
independence or impartiality or that might reasonably create anappearance of impropriety or an apprehension of bias. An appearance ofimpropriety or an apprehension of bias is created when a reasonable
person, with knowledge of all the relevant circumstances that a reasonableinquiry would disclose, would conclude that a candidate’s or arbitrator’sability to carry out the duties with integrity, impartiality and competence
is impaired.

(d)Upon selection, an arbitrator shall refrain, for the duration of theproceeding, from acting as counsel or party-appointed expert or witness inany pending or new investment dispute under the Comprehensive andProgressive Agreement for Trans-Pacific Partnership or any otherinternational agreement.

(e)

An arbitrator shall comply with internationally recognised standards orguidelines regarding direct or indirect conflicts of interest, such as theInternational Bar Association Guidelines on Conflicts of Interest inInternational Arbitration.

(f)

In the event of an alleged breach of this Code of Conduct, the Rules
governing the arbitration shall apply to any challenge, disqualification orreplacement of an arbitrator.

Disclosure Obligations(a)Throughout the tribunal proceeding, candidates and arbitrators have acontinuing obligation to disclose interests, relationships and matters that
may bear on the integrity or impartiality of the dispute settlement process.

(b)

The disputing parties or the Secretary-General, as the appointing authority
for an arbitration referred to in Article 9.22.2 (Selection of Arbitrators),
will provide a candidate a copy of this Code of Conduct and the Initial
Disclosure Statement set out in the Appendix to this Code of Conduct.

(c)

A candidate shall submit the Initial Disclosure Statement set out in theAppendix to this Code of Conduct to the disputing parties or the SecretaryGeneral, as the appointing authority, no later than seven days after receiptof that Statement.
[FN 1: This subparagraph does not prevent the appointment of arbitrators
by the disputing parties prior to the submission of the Initial DisclosureStatement.]Annex to CPTPP/COM/2019/D004[FN 2: For greater certainty, the submission of the Initial DisclosureStatement is without prejudice to any further disclosure required pursuant
to the Rules.](d)

A candidate shall disclose any interest, relationship or matter that is likely
to affect his or her independence or impartiality or that might reasonably
create an appearance of impropriety or an apprehension of bias in thetribunal proceeding. To this end, a candidate shall make all reasonable
efforts to become aware of any such interests, relationships and matters.
Therefore, a candidate shall disclose, at a minimum, the followinginterests, relationships and matters:
(i)

(ii)

(e)

any financial or personal interest of the candidate in:(A)

the tribunal proceeding or its outcome; and(B)an administrative proceeding, a domestic judicial
proceeding or another international dispute settlement
proceeding that involves issues that may be decided in thetribunal proceeding for which the candidate is underconsideration;

any financial interest of the candidate’s employer, business partner,
business associate or family member in:(A)

the tribunal proceeding or its outcome; and(B)an administrative proceeding, a domestic judicial
proceeding or another international dispute settlement
proceeding that involves issues that may be decided in thetribunal proceeding for which the candidate is underconsideration;(iii)

any past or current financial, business, professional, family orsocial relationship with any interested parties in the tribunal
proceeding, or their counsel, or any such relationship involving acandidate’s employer, business partner, business associate or
family member; and[FN: For greater certainty, “interested parties” may include thehome country of the investor.](iv)

public advocacy or legal or other representation concerning anissue in dispute in the tribunal proceeding or involving the sameinvestment.

Once appointed, an arbitrator shall continue to make all reasonable efforts
to become aware of any interests, relationships or matters referred to inAnnex to CPTPP/COM/2019/D004

subparagraph (d) and shall disclose them. The obligation to disclose is acontinuing duty that requires an arbitrator to disclose any such interests,relationships and matters that may arise during any stage of the tribunal
proceeding.

5.

(f)

In the event of any uncertainty regarding whether an interest, relationshipor matter must be disclosed under subparagraph (d) or subparagraph (e), a
candidate or arbitrator should err in favour of disclosure. Disclosure of aninterest, relationship or matter is without prejudice as to whether theinterest, relationship or matter is covered by subparagraph (d) orsubparagraph (e), or whether it warrants recusal, amelioration ordisqualification.

(g)

The disclosure obligations set out in subparagraphs (a) through (f) should
not be interpreted so that the burden of detailed disclosure makes it
impractical for individuals in the legal or business community to serve as
arbitrators, thereby depriving the disputing parties of the services of those
who might be best qualified to serve as arbitrators. Thus, candidates andarbitrators should not be called upon to disclose interests, relationships ormatters whose bearing on their role in the tribunal proceeding would betrivial.

Performance of Duties by Candidates and Arbitrators(a)

A candidate who accepts an appointment as an arbitrator shall be available
to perform, and shall perform, once the arbitrator is appointed pursuant toArticle 9.22 (Selection of Arbitrators), an arbitrator’s duties thoroughly,
fairly, diligently and expeditiously throughout the course of the tribunal
proceeding.

(b)

An arbitrator shall ensure that he or she is contactable, at all reasonable
times, by the Secretary-General, disputing parties, arbitration institution in
charge of the proceeding and other arbitrators of the tribunal in order to
conduct tribunal work.

(c)

An arbitrator shall comply with the provisions of Chapter 9 Section B(Investor-State Dispute Settlement) and the Rules.

(d)An arbitrator shall not deny other arbitrators the opportunity to participate
in all aspects of the tribunal proceeding.

(e)

An arbitrator shall consider only those issues raised in the tribunal
proceeding and necessary to make a decision, order or award.

(f)

An arbitrator shall not delegate the duty to make a decision, order or award
to any other individual.

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6.

(g)

An arbitrator shall take all reasonable steps to ensure that his or her
assistants and staff comply with paragraphs 2 (Responsibilities to theProcess), 4(a), 4(d), 4(e), 4(f) and 4(g) (Disclosure Obligations), 5(c), 5(h)and 5(i) (Performance of Duties by Candidates and Arbitrators), and 8(Maintenance of Confidentiality) of this Code of Conduct.

(h)

An arbitrator shall not engage in any ex parte contact concerning thetribunal proceeding.

(i)

A candidate or arbitrator shall only communicate matters concerning
actual or potential violations of this Code of Conduct to the SecretaryGeneral, disputing parties and arbitration institution in charge of theproceedings, or if necessary to ascertain whether that candidate orarbitrator has violated or may violate this Code of Conduct, to theSecretary-General, the disputing parties, and arbitration institution incharge of the proceedings.

(j)Each arbitrator shall keep a record and render a final account of the time
devoted to the proceeding and of his or her expenses, as well as the timeand expenses of his or her staff and assistants.

Independence and Impartiality of Arbitrators(a)

An arbitrator shall be independent and impartial. An arbitrator shall act ina fair manner and shall not create an appearance of impropriety or anapprehension of bias.

(b)

An arbitrator shall not be influenced by self-interest, outside pressure,political considerations, public clamour, loyalty to a disputing party or a
non-disputing Party or fear of criticism.

(c)

An arbitrator shall not, directly or indirectly, incur any obligation or accept
any benefit that would in any way interfere, or appear to interfere, with theproper performance of his or her duties.

(d)An arbitrator shall not use his or her position on the tribunal to advanceany personal or private interests. An arbitrator shall avoid actions that may
create the impression that others are in a special position to influence thearbitrator. An arbitrator shall make every effort to prevent or discourageothers from representing themselves as being in such a position.

(e)

An arbitrator shall not allow past or ongoing financial, business,professional, family or social relationships or responsibilities to influence
his or her conduct or judgment.

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7.

(f)

An arbitrator shall avoid entering into any relationship, or acquiring any
financial interest, that is likely to affect his or her impartiality or that mightreasonably create an appearance of impropriety or an apprehension of bias.

(g)

If an interest, relationship or matter of a candidate or arbitrator isinconsistent with subparagraphs (a) through (f), the candidate may accept
appointment to a tribunal and an arbitrator may continue to serve on atribunal if the disputing parties waive the violation or if, after the candidate
or arbitrator has taken steps to ameliorate the violation, the disputing
parties determine that the inconsistency has ceased.

Duties of Former Arbitrators

A former arbitrator shall avoid actions that may create the appearance that thearbitrator was biased in carrying out his or her duties or would benefit from the decision,order or award of the tribunal.
8.

9.

Maintenance of Confidentiality(a)

An arbitrator or former arbitrator shall not at any time disclose or use any
non-public information concerning the tribunal proceeding or acquired
during the tribunal proceeding except for the purposes of the tribunal
proceeding and shall not, in any case, disclose or use any such information
to gain personal advantage or advantage for others or to affect adversely
the interest of another.

(b)

An arbitrator shall not disclose a decision, order or award or parts thereofprior to its publication in accordance with Chapter 9 Section B (InvestorState Dispute Settlement), except in accordance with Article 9.23.10(Conduct of the Arbitration).

(c)

An arbitrator or former arbitrator shall not at any time disclose thedeliberations of a tribunal, or any arbitrator’s view.
[FN: For greater certainty, this subparagraph (c) does not apply to thearbitrator’s view in a decision, order, award or opinion.](d)An arbitrator shall not make a public statement regarding the merits of apending tribunal proceeding.

Responsibilities of Experts, Assistants and Staff

Paragraphs 2 (Responsibilities to the Process), 4(a), 4(d), 4(e), 4(f) and 4(g)(Disclosure Obligations), 5(c), 5(h) and 5(i) (Performance of Duties by Candidates andArbitrators), 7 (Duties of Former Arbitrators) and 8 (Maintenance of Confidentiality) of
this Code of Conduct shall also apply to experts, assistants and staff.

Annex to CPTPP/COM/2019/D004

10.

Review

A Party to the Comprehensive and Progressive Agreement for Trans-PacificPartnership may request the Trans-Pacific Partnership Commission established underArticle 27.1 (Establishment of the Trans-Pacific Partnership Commission) to review andamend the Code of Conduct for Investor-State Dispute Settlement to take into account,
as appropriate, relevant developments concerning Investor-State Dispute Settlement.

Annex to CPTPP/COM/2019/D004

APPENDIX TO CODE OF CONDUCT FOR INVESTOR-STATE DISPUTESETTLEMENT UNDER CHAPTER 9 SECTION B (INVESTOR-STATEDISPUTE SETTLEMENT) OF THE COMPREHENSIVE AND PROGRESSIVE
AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP
INITIAL DISCLOSURE STATEMENT FORM1.
I acknowledge having received a copy of the Code of Conduct for investor-state
dispute settlement under Chapter 9 Section B (Investor-State Dispute Settlement) of theComprehensive and Progressive Agreement for Trans-Pacific Partnership.
2.

I acknowledge having read and understood the Code of Conduct.

3.
I understand that I have a continuing obligation, while participating in the tribunal
proceeding, to disclose interests, relationships and matters that may bear on the integrity
or impartiality of the dispute settlement process. As a part of this continuing obligation,
I am making the following initial disclosures:(a)

My financial interest in the tribunal proceeding for which I am underconsideration or in its outcome is as follows:(b)

My financial interest in any administrative proceeding, domestic judicial
proceeding or other international dispute settlement proceeding thatinvolves issues that may be decided in the tribunal proceeding is asfollows:(c)

The financial interests that any employer, business partner, businessassociate or family member of mine may have in the tribunal proceedingor in its outcome are as follows:(d)

The financial interests that any employer, business partner, businessassociate or family member of mine may have in any administrative
proceeding, domestic judicial proceeding or other international disputesettlement proceeding that involves issues that may be decided in thetribunal proceeding are as follows:(e)

My past or current financial, business, professional, family and social
relationships with any interested parties in the tribunal proceeding, or theircounsel, are as follows:(f)

The past or current financial, business, professional, family and social
relationships with any interested parties in the tribunal proceeding, or theircounsel, involving any employer, business partner, business associate or
family member of mine are as follows:Annex to CPTPP/COM/2019/D004(g)

My public advocacy or legal or other representation concerning an issue
in dispute in the tribunal proceeding or involving the same investment isas follows:(h)My other interests, relationships and matters that may bear on the integrity
or impartiality of the dispute settlement process and that are not disclosed
in subparagraphs (a) through (g) above are as follows:Signed on this __________ day of ____________, 20__.
By:
Signature_________________________________________
Name____________________________________________