Ethics - International Legal Developments Year in Review: 2023

This article highlights significant legal developments in International Ethics Law in 2023, specifically the Investor-State Dispute Settlement (ISDS) Code of Conduct.

I. Investor-State Dispute Settlement 2023 Code of Conduct Overview

A. Introduction

At its fifty-sixth session in July 2023, the United Nations Commission on International Trade Law (“UNCITRAL”) formally adopted the Code of Conduct for Arbitrators in International Investment Dispute Resolution (“the Code”) and accompanying commentary. The Code, which has been under development since 2017, is the result of joint efforts of both the Secretariats of UNCITRAL and the International Centre for Settlement of Investment Disputes (“ICSID”) to uphold the integrity and credibility of the arbitral process. The Code is applicable to arbitration proceedings either by consent of the parties or as required in the instrument of consent (i.e., the relevant investment treaty under which arbitration is commenced).

The adoption of the Code marks the most recent development in the Investor—State Dispute Settlement (“ISDS”) process, signaling an internationally unified statement supporting reform. Clear ethical expectations and requirements applicable to ISDS players are a welcome development following years of heated debate. It introduces guidelines addressing two major concerns around arbitrator appointments: disclosure obligations for arbitrators sitting on investment treaty tribunals and “double-hatting” (i.e., the practice of sitting as an arbitrator in one case and serving as a party representative or expert witness in another).

At a minimum, the Code helps to legitimize the oft-criticized process of ISDS. But as the result of compromise, the Code may not be sufficient to fully address perceived flaws within the ISDS process. With limited regulation on double-hatting, a rehaul of confidentiality requirements, and no clear path on enforceability, continuing criticism is inevitable. The question becomes whether the Code is enough.

If parties value flexibility and freedom, desiring the ability to tailor the arbitration process to the specific facts of their case, then the Code represents a balanced compromise. On the other hand, if there is still concern about procedural transparency, consistency, and fairness, then the Code seems to fall short.

UNCITRAL received various State proposals during early talks of ISDS reform in 2017. The proposals ranged from introducing binding rules for arbitrators to setting up formal investment courts. UNCITRAL ultimately settled on the option which best balanced party flexibility and a widespread desire for increased transparency and impartiality. Whether that compromise is sufficient to address ISDS criticism requires exploring alternative reform options.

B. The ISDS Legitimacy Crisis

ISDS is designed to create a fair and transparent process to resolve individual investment disputes between investors and States. But prior to the adoption of the Code, the ISDS regime attracted strong and growing criticism related to inconsistency in arbitral awards, partial and self-interested arbitrators, long durations and high costs, and a general lack of transparency. Critics often argued that proceedings took place behind closed doors without any accountability in the way of public scrutiny.

States differed on the degree of reformation necessary. Two main approaches emerged. Some States supported reforming the ISDS process with additional regulation while others preferred to see it replaced with a multilateral investment court (“MIC”). Thus, the Working Group was saddled with a difficult task: how to strike a compromise between both ends of the spectrum.

Specifically, the practice of double-hatting was—and continues to be—hotly debated. The previous ISDS framework allowed an arbitrator to adjudicate disputes even when conflicts of interest were readily apparent. In ICS Inspection and Control Services v. Argentina, the Respondent challenged the arbitrator appointed by the Claimant, who, with his law firm, was simultaneously representing investors in another ISDS proceeding against the Respondent. Even though the arbitrator disclosed this information upon acceptance of his appointment, the deciding authority stated his role as counsel placed him “in a situation of adversity” against the Respondent. Ultimately, the authority stated that this gave rise to doubts of his impartiality and independence. In Exeteco International v. Peru, the Respondent challenged the Claimant’s arbitrator on the basis that the arbitrator has advised and was concurrently advising several Respondent’s public entities in a number of unrelated matters. While the arbitrator’s independence was not at risk here, the deciding authority did say his role as counsel gave rise to objectively justifiable doubts as to his impartiality.

A number of other ISDS decisions under the UNCITRAL Arbitration Rules and the ICSID Convention have addressed similar issues. Even though the challenges in the above-mentioned cases were successful, the fact remains that the ISDS process permitted both arbitrators to accept appointment in the first place.

Parties also complained that the length and costs of arbitral proceedings were rising. The average cost per ISDS proceeding was about $8 million USD. Eighty to ninety percent of those costs were associated with fees for legal representation and expert witnesses. Because proceedings were so resource intensive, smaller enterprises and developing countries had limited access to the ISDS mechanism. The protections afforded under investment treaties were not universally accessible because allocation of cost fell to the parties. Often, this would lead to external funding, known as third-party litigation funders, muddying the water even further. Third-party litigation funding raises issues of conflicts of interest, access to justice, disclosure, transparency, and more. The legitimacy of the ISDS system was precarious and ripe for reform.

Algeria first proposed the Code’s inception in 2015 and two years later UNCITRAL’s task force specifically tasked with reforming the ISDS process, Working Group III, broke ground on a draft code of conduct. The Working Group identified several main concerns with the ISDS framework in place at the time: double-hatting, the appointment process, qualifications to adjudicate, and impartiality. During preliminary discussions, it was uncontroversial that the Code should address these concerns.

States such as the Russian Federation saw the advantages to the current arbitrator system if it was regulated more closely to address existing problems. There are roughly two different approaches for regulating the existing arbitration framework depending on the level of regulation. First is the approach taken by the Code as further explained below. Second is to create a separate class of exclusive arbitrators via an outright prohibition on double-hatting.

Currently, Article 4 of the Code places temporal limitations on double-hatting. It further includes the option for parties to agree on issues contrary to certain provisions: multiple roles, ex parte communication, and confidentiality. Because the code is not independently enforceable or binding, disputing parties are afforded the option to utilize the Code or forego it entirely. Thus, the Code is structured as soft law instrument. It allows the parties to make their own value judgments about flexibility and transparency. Even if both parties bind themselves to the Code, they retain the ability to agree otherwise on key provisions.

Often, arbitration as a form of dispute resolution is attractive specifically because of procedural flexibility. The Code preserves flexibility while still providing guidelines to address glaring concerns like disclosure obligations and conflicts of interest.

The Code’s equivalent within commercial arbitration—the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration (“Guidelines”)—provides a similar level of flexibility. Launched in 2004, the Guidelines are a similar soft law instrument that provide guidance regarding the scope of arbitrator’s disclosure obligations and conflict of interest issues. The Guidelines categorize disclosure requirements into three lists: Green, Orange, and Red. The Green List includes situations in which there is no appearance of a conflict and no actual conflict objectively exists. The Orange List includes situations that may subjectively, in the view of the parties, give rise to doubts about the arbitrator’s impartiality. The Red List is split into waivable and non-waivable conflicts. Non-waivable conflicts include situations deriving from “the overriding principle that no one person can be his or her own judge.” The waivable conflict list contains everything else.

Similar to the Code, the Guidelines are not binding and do not specifically address the potential disqualification of an arbitrator. Nonetheless, the Guidelines have become quite influential and are frequently considered relevant by arbitral institutions for assessing the impartiality and independence of a challenged arbitrator. In a 2014 survey on the use of soft law instruments in international arbitration, the Guidelines were the second most popular instrument: forty-four percent of respondents use them always or regularly. Another survey revealed that seventy-one percent of respondents were aware of the Guidelines and have seen them used in practice and sixty percent found the Guidelines effective.

Respondents to the latter listed survey reported that the two most effective ways to regulate arbitrator conduct are (1) through instruments issued by arbitral institutions and (2) through a code of conduct issued by a professional institution or body for arbitrators. Respondents showed a slight preference for the former at twenty-three percent, but the latter only trailed slightly by one percent. Seventeen percent of respondents thought the Guidelines were the most effective. Considering the similarity between the two, the success of the Guidelines could signal impending success for the Code. At the same time, ISDS does not delve into identifying permissible versus impermissible conflict and leaves a great deal of leeway to the parties in terms of what they will consent to or not. Under the Guidelines, on the other hand, the Red List does provide that some conflicts are non-waivable and require arbitrator recusal.

The next degree of regulation would be to create a closed class of arbitrators. This would essentially function as an outright prohibition on double-hatting, which remains a contentious topic within the ISDS community and will likely remain so despite the creation of the Code.

There are several advantages to this approach. Foremost, it would ensure the greatest degree of arbitrator independence and impartiality under the existing framework. An arbitrator would be insulated from accusations of implicit or explicit bias because their role would be limited to that of adjudicator.

The Code of Conduct for United States Judges is an example of a functioning prohibitionary framework. Per Canon 3(c)(1)(b), a federal judge must disqualify themselves if (1) the judge served as a lawyer in the matter; (2) the judge has been a material witness; or if (3) a lawyer with whom the judge was previously associated served on the matter concurrently with the judge. Contrasted with Article 4 of the Code, the difference is stark. At no point is a federal judge permitted to adjudicate any matter in which they acted as legal counsel. But an arbitrator—in compliance with the Code—could theoretically adjudicate a claim in which they were a disputing party’s legal representative.

The stringent ethical requirements required from a federal judge reflects not only the scale of the United States Federal Court system, but also the resources available to fund an independent judiciary. The nature of arbitration is inherently different than adversarial proceedings before a court. ISDS, as a niche aspect of arbitration at large, may not be amenable to those same strict ethical requirements, or the associated financial constraints and requirements.

First, an independent class of arbitrators would force a schism in an already narrow pool of qualified experts. While promoting independence and impartiality, this option runs the risk of decreasing diversity and makes developing the next generation of arbitrators difficult. A majority of the individuals chosen to serve as international arbitrators are male, from North America or Western Europe, and generally quite senior. Prohibiting double hatting could reinforce the “male, pale, and stale” profile. Furthermore, in such a narrow pool of qualified professionals, parties would notice dwindling representation options.

Second, disputing parties could bear the burden of exponentially increased costs. If an arbitrator accepts an appointment, and is thereby disqualified from pursuing other work, fees will increase to reflect the arbitrator’s opportunity cost. The Code, in discussing
“reasonable fees,” considers the relevant circumstances. This would include situations where the arbitrator would forego other work to accept an appointment. If the cost of selecting the “best” arbitrator becomes prohibitively expensive, then arbitration becomes less appealing. Parties may be forced to look elsewhere to resolve disputes. It may also disincentivize candidates from accepting appointments which would ultimately fall back onto disputing parties. This ultimately could snowball into decreasing usage of ISDS as a dispute resolution mechanism altogether.

Third, arbitrator competence could be inadvertently affected. Limiting a candidate’s ability to pursue further work because of their appointments inherently restricts representative experience. While working under one “hat,” the arbitrator cannot continue to develop their skillset under the other “hat.” While not a per se negative, it is a tradeoff.

Fourth, there could be a decrease in party autonomy. International arbitration, as a creature of contract (in this context, a treaty), is driven by user interest in selecting arbitrators that will best understand their positions and rights. It is why arbitration is attractive to parties in the first place. To many, flexibility to select an arbitrator ensures predictability and consistency. While appointments were never a “free-for-all,” any potential narrowing of party freedom is meaningful. In the thirty-eight session of Working Group III, “it was said” that using a predetermined list of adjudicators or roster would be against the essence of arbitration, unless done on a voluntary basis or where the list or roster would be used for guidance purpose only.

Further afield still is what the European Union advocated for: the establishment of a multilateral investment court (“MIC”), composed of a first instance and appellate tribunal staffed by full-time adjudicators. This would be a major departure from the ISDS process already in place. Parties would have little or no influence on the appointment of the adjudicators in a standing court. Instead of ad hoc arbitration, an MIC would bring key features of domestic and international courts to investment arbitration. The standing mechanism proposed by the EU would have a first instance tribunal to hear disputes, conduct fact finding, and apply the applicable law to the facts. The appellate tribunal would hear appeals from the tribunal of first instance. Arbitrators who sat on these tribunals would be salaried and have no outside activities.

The EU considers that a MIC would enhance predictability and consistency of decisions in investor-state disputes. The transparency of the dispute resolution process would arguably increase because arbitrators would be assigned at random. A MIC also has the potential to increase diversity, particularly among geographic regions, among arbitrators. The MIC’s greatest asset lies in its potential to legitimize process and outcomes.

The drawbacks of replacing the ISDS system with an MIC include eliminating party autonomy in the arbitrator selection process, potential politicization of judicial appointments, and increased case duration and cost. The Russian Federation expressed these concerns in their comments to the Working Group, highlighting that the advantages of an international investment court do not outweigh the advantages of the existing ISDS process. Because the MIC tribunals would be composed of judges appointed by the state, the risk of court packing (i.e., only adjudicators sympathetic to the state are appointed) becomes relevant. Moreover, the centralization of disputes also brings the possibility that the system overloads and proceedings carry on unnecessarily.

Logistically speaking, most states would have to commit to move away from the ISDS system to a MIC for the MIC to be effective. Otherwise, there would not be sufficient resources to fund such an undertaking. The cost to establish two tiers of professional international tribunals is significant. In the MIC system, it appears that a permanent court financed by States may make the adjudicators of the disputes beholden to State interests that would, of course, be funding the system. This could create a disproportionately biased institution and weaken investors’ rights seeking redress.

C. What is in the Code: Specific Provisions

Ultimately, the final Code caters more to the reformation advocates than those who sought extensive structural change. The Working Group considered commentary from over twenty-five different countries prior to creating the first draft. A first version of the Code was published in 2020 and several subsequent versions were published in 2021 and 2022 following extensive input by various States. The adopted Code includes twelve articles, summarized as follows, with accompanying commentary:

Article 1: Definitions

This article defines key terms used throughout the Code.

First, International Investment Dispute (“IID”) means a dispute between an investor and (1) a State; (2) a regional economic integration organization; (3) any constituent subdivision of a State; (4) agency of a State; or (5) agency if a regional economic integration organization. The dispute must be submitted before resolution pursuant to an instrument of consent which is defined as either “a treaty providing for the protection of investors,” “legislation governing foreign investments,” or an investment contract between the above listed parties upon which the consent to arbitrate is based. Applicable Rules include the “applicable arbitration rules and any law applicable to the IID proceeding.”

“An Arbitrator is a person who is a member of an arbitral tribunal or an International Centre for Settlement of Investment Disputes (“ICSID”) ad hoc committee and who is appointed to resolve an IID.” “A Candidate means a person who has been contacted regarding potential appointment as an Arbitrator, but who has not yet been appointed.”

Article 2: Application of the Code

Arbitrators in, and any Candidates for, an IID are subject to the Code. The Code may be applied by agreement of the disputing parties or by the instrument of consent.

Article Three: Independence and Impartiality

An Arbitrator has a duty to be independent and impartial. This duty includes the obligation not to (1) be influenced by external loyalties; (2) heed external instructions regarding the international investment dispute; (3) succumb to past, present, or prospective financial or business relationships; (4) use their position to advance personal or financial interests in the disputing parties or the ultimate outcome; (5) engage in behavior which interferes with duty performance; and (6) behave in such a way as to create the appearance of partiality or a lack of independence.

Article 4: Limit on Multiple Roles

Arbitrators may not act concurrently as legal representative or expert witness unless the disputing parties agree otherwise. The scope of this regulation is limited to any proceeding which involves the same measure(s), the same or related party (parties), or the same provision(s) of the same instrument of consent.

Article 4(2) and 4(3) further provide that a former Arbitrator cannot act as a legal representative or expert witness in any other international investment dispute involving the same measure(s) or the same or related party (parties) within three years.

The former Arbitrator’s ability to be legal representative or expert witness in an international investment dispute involving the same provision(s) of the same instrument is limited to a period of one year.

Article 5: Duty of Diligence

The Arbitrator has a duty to perform their role diligently, devote sufficient time to the proceedings, and render decisions in a timely manner. The commentary clarifies that “Arbitrators should not take on additional cases or responsibilities if [it] would impede [their] ability to perform” duties in a timely manner or cause delays in the proceeding. The Candidate should not only inform the party of their availability over a certain period of time, but if the candidate anticipates not being able to fulfil their duty of diligence they should not accept the appointment. What is considered timely will depend on the specific circumstances of any given case.

Article 6: Integrity and Competence

An Arbitrator also has a duty to possess and maintain the skills and knowledge necessary to perform their responsibilities. The Arbitrator must conduct IID proceedings with “integrity, fairness, and civility.” Generally, competence is broadly understood to include professional knowledge and experience in investment and public international law. It also includes linguistic skills. Civility obligates the arbitrator to be polite, respectful, and professional when interacting with participants in the IID proceeding.

Article 7: Ex parte Communications

Ex parte communications are prohibited with limited exceptions.

The prohibition applies only if the following three criteria are met: “(1) there is a written or oral communication between a Candidate or an Arbitrator on the one hand and a disputing party, its legal representative, affiliate, subsidiary, or other related person on the other; (2) the communication concerns the IID; and (3) the communication is made without the presence of or knowledge of other disputing parties or their legal representatives.” A communication must meet all three above listed criteria.

For example, a phone call regarding matters distinct from the IID or a meeting with a disputing party where the other parties’ legal representative participated would not be prohibited under article 7. If the other party is present remotely or on notice of the contents of the communication, it is not prohibited. As long as the other disputing party is informed prior to the communication and given an opportunity to take part, the communication is likely permissible. It is not sufficient that the other party becomes aware of the communication after the fact.

Article 7(1) further provides that ex parte communication is permissible if (1) the Instrument of Consent, (2) the Applicable Rules, or (3) the agreement of the disputing parties provides for it. For instance, the presence or knowledge of both parties is generally required when interviewing a candidate for the role of sole arbitrator. But “parties may agree that ex parte interviews are permissible.”

Article 7(2) also allows communications between a Candidate and a disputing party for the purpose of vetting the Candidate for potential party appointment. Provided the communication is about the Candidate’s competence, availability, or the existence of potential conflicts of interest, then it is permissible.

Even when ex parte communication is permitted under 7(1) or 7(2), any substantial procedural aspects or issues of merit should not be discussed. A few examples include jurisdiction of the tribunal, the substance of the dispute, and the merit of the claims.

Article 8: Confidentiality

An Arbitrator may not “disclose or use any information concerning or acquired in connection with an IID proceeding.” Such information, including draft decisions and IID proceeding deliberations, are confidential. “Disclosure” refers to the sharing or circulation of information or material by making it available to anyone without authorization. This includes making confidential information publicly available. The term “use” refers specifically to availing oneself of information garnered through the IID process and possibly taking advantage of it.

Arbitrators are permitted to comment on rendered decisions provided it is made publicly available in accordance with the instrument of consent or applicable rules. But commentary is prohibited while IID proceedings are pending, or the decision is subject to a post-award remedy or review. The content of the commentary, when allowed, may list the legal issues dealt with, discuss the procedural aspects of the proceedings, and describe the stated reasoning of the award. It can never address the content of the deliberations.

There is an exception to the prohibition on commentary when a Candidate or Arbitrator is legally compelled to disclose information, such as a subpoena issued by a domestic court.

Article 9: Fees and Expenses

Fees are to be reasonable and in accordance with the applicable rules. What a “reasonable” fee is will fluctuate depending on the complexity of the factual and legal issues that arise in the IID, the amount in dispute, the time spent by the arbitrator, and any other relevant circumstances of the case. The Arbitrator must keep record of their time and expenses available upon request of a disputing party.

Article 10: Assistant

Arbitrators are permitted assistants. The disputing parties must, however, agree on the role, scope of duties, and expense prior to engaging the Assistant. Tasks typically carried out by Assistants include legal research, review of pleadings and evidence, case logistics, attendance at deliberations, and other similar assignments. The Assistant should never exercise any decision-making function but should always perform tasks under the direction of the Arbitrator.

It is the Arbitrator’s responsibility to ensure that their Assistant acts in accordance with the Code.

Article 11: Disclosure Obligation

Arbitrators have a duty to “disclose any circumstances likely to give rise to justifiable doubts of his or her independence or impartiality.” “Doubts are justifiable if a reasonable person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood the Candidate or arbitrator may be influenced by factors” separate from the merits of the case as presented by the parties in reaching their decision. Furthermore, the disclosure obligation is not subject to temporal limitations. The commentary accompanying Article 11 directs Candidates and Arbitrators to existing international standards, such as the 2014 IBA Guidelines, for practical guidance as to the types of circumstances that require disclosure.

Specific information which must be disclosed regardless of the catch-all provision in 11(1) is enumerated in 11(2). Mandatory disclosures include any financial, business, professional, or close personal relationship within the last five years with “(1) any disputing party, (2) the legal representative of a disputing party in the IID proceeding, (3) other arbitrators and expert witnesses in the IID proceeding, and (4) any person or entity identified by a disputing party” who has interest in the outcome of the proceeding. This disclosure obligation operates independently of the first provision and is mandatory regardless of whether it gives rise to justifiable doubts.

“Business” relationship means any past or present connection related to commercial activities usually shared with financial interest. “Professional” relationship includes where a Candidate or Arbitrator was an employee, associate, or partner in the same law firm as another person involved in the IID proceeding. It could also extend to involvement in the same project or case as opposing counsel or co-Arbitrator. Being a member of the same professional association or charitable organization usually would not constitute a professional relationship. “Close personal” relationships are those involving a degree of intimacy beyond the financial, business, or professional relationships. This could involve familial bonds or long-term friendships. Casual or social acquaintances, distant family ties, or being in the same class at school would not qualify as a close personal relationship.

In addition to persons with whom the arbitrator has a relationship, disclosure of any financial or person interest in “(1) the outcome of the IID proceeding, (2) any other proceedings involving the same measure(s), and (3) any other proceeding involving” a related person or party is required. Financial interest does not refer to remuneration of fees or reimbursement of expenses incurred in the IID proceeding.

A Candidate or Arbitrator must disclose all IID and related proceedings within the last five years in which they participated in any capacity, including as a legal representative and expert witness. This includes any international or domestic proceeding directly linked with an IID proceeding, such as a set-aside or enforcement proceeding. In contrast, just because a proceeding involved the same disputing parties, addressed the same measure, or is based on the same instrument of consent does not mean it is related.

Arbitrators must also disclose any prospective concurrent appointments. The obligation to make such disclosures is ongoing as new information arises as is the duty to make reasonable efforts to become aware of a conflict. Erring on the side of disclosure when in doubt is recommended.

If an arbitrator’s duty to safeguard confidential information prevents a robust disclosure, the arbitrator must disclose only to the extent possible. If disclosure is wholly impossible, then the arbitrator must not accept appointment.

Lastly, failing to disclose a conflict of interest is not sufficient to establish a lack of independence or impartiality. It is the content of the omitted information that determines whether there is a violation.

Article 12: Compliance with the Code

Arbitrators and Candidates must comply with the Code. Adherence could be promoted by requiring a Candidate to sign a declaration or an Arbitrator to sign one upon appointment. Alternatively, if they are unable to comply, then recusal or resignation is mandatory. “Compliance with the Code may also be sought by bodies or institutions established to monitor any breach or impose sanctions.” That process and standard of challenge, disqualification, sanction, and remedy are governed by the instrument of consent or applicable rules.

D. What is not in the Code: Regulation, Prohibition, and Enforcement

It is equally as important to understand what is not included in the Code as it is to understand what is. First, there is no outright prohibition on double-hatting in the Code. Article 4 provides only for temporal limitations that narrow the scope of when multiple representation is permitted. The closest the Code gets to a prohibition is the mandate against concurrent representation in Article 4(1)(a)–(c). Thus, the Code does not create a separate class of professional arbitrators distinct from legal representatives and expert witnesses. It only regulates the pre-existing role of an arbitrator.

Second, several provisions in the Code can be sidestepped via agreement by disputing parties, the instrument of consent, or the applicable rules. This is most apparent in Article 4 where agreement by disputing parties can overcome the mandate against concurrent double-hatting.

Finally, enforcement of the Code is vague at best. The Code itself does not include an implementation and enforcement mechanism. Article 12 offloads the issue of sanctions and remedies to the instrument of consent or the applicable rules. In addition to lacking an internal enforcement framework, the Code is not currently incorporated into any existing treaties. This means it is not binding unless disputing parties integrate the Code in a case-specific agreement. Until such a time as the Code is officially integrated into treaties, it will function primarily as guidelines that parties can opt to follow but are not required to do so.

Overall, the Code is a good compromise, if not at least a step in the right direction. It demonstrates a uniform desire to reform the ISDS process albeit to varying degrees. While not the perfect solution, it provides a high degree of autonomy for disputing parties to tailor the resolution to the specific facts, a cornerstone of arbitration. If parties choose to use the Code like the tool it is designed to be, then they will likely find it addresses the major concerns identified by Working Group III. If IBA Guidelines are any indication, the Code is likely to succeed even if the EU continues to advocate for the creation of a MIC. For now, the Code strikes a balance between party autonomy and systemic legitimacy at this point in the ISDS reform process. Only time will tell whether the right balance has been achieved.