Contextual Impartiality: A New Approach to Assessing Impartiality in Investor-State Dispute Settlement

Abstract

This article proposes a new approach to assessing impartiality in investor-State dispute settlement (ISDS). It builds on earlier work that criticises the current doctrine of impartiality in ISDS which applies irrespective of the role and context in which arbitrators are called to decide a dispute. Drawing on empirical findings, moral philosophy and psychology, this article proposes the idea of contextual impartiality. As is argued, a contextual approach offers an understanding of impartiality which better corresponds to the foundational value of trust in ISDS which is founded on the method of party appointment of arbitrators. Under this approach, the question is not whether an arbitrator can meet universal standards of impartiality irrespective of the context within which the arbitrator operates. Rather, the critical distinction is between permissible and impermissible partiality which depends on whether the individual is reasonably expected to act partially because of their circumstances. In this respect, the article identifies open-mindedness as a fundamental feature of a contextual approach to impartiality and a bright line between permissible and impermissible partiality.