IBA Conflict IBA Guidelines on Conflicts of Interest in International Arbitration (2024)
IBA Conflict
IBA Guidelines on Conflicts of Interest in International Arbitration (2024)
(a) An arbitrator shall decline an appointment or, if the arbitration has already been commenced, refuse to continue to act as an arbitrator, if the arbitrator has any doubt as to the arbitrator’s ability to be impartial or independent.
(b) The same principle applies if facts or circumstances exist, or have arisen since the appointment, which, from the point of view of a reasonable third person having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to the arbitrator’s impartiality or independence, unless the parties have accepted the arbitrator in accordance with the requirements set out in General Standard 4.
(c) Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching the arbitrator’s decision.
(d) Justifiable doubts necessarily exist as to the arbitrator’s impartiality or independence in any of the situations described in the Non-Waivable Red List.
Explanation to General Standard 2:
(a) If the arbitrator has doubts as to the arbitrator’s ability to be impartial and independent, the arbitrator must decline the appointment, or refuse to continue to act. This standard should apply regardless of the stage of the proceedings. This is a basic principle that is spelled out in these Guidelines to avoid confusion and foster confidence in the arbitral process.
(b) The wording ‘impartiality or independence’ in General Standard 2 derives from the widely adopted Article 12 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law, addressing the disqualification of arbitrators. As provided in Article 12(2) of the UNCITRAL Model Law, the test for disqualification is an objective one (a ‘reasonable third person test’), using an appearance test based on justifiable doubts as to the impartiality or independence of the arbitrator. In deciding whether to decline an appointment or refuse to continue to act, the arbitrator should bear in mind the objective standard to evaluate the relevant facts or circumstances. An arbitrator must decline an appointment or refuse to continue to act under General Standard 2(b) because an objective conflict of interest exists unless that objective conflict is waived pursuant to General Standard 4.
(c) When justifiable doubts exist, an arbitrator should decline appointment or refuse to continue to act, for example in circumstances described in the Non-Waivable Red List. However, the existence of justifiable doubts may instead lead the arbitrator to make a disclosure in accordance with General Standard 3, such as in circumstances described in the Waivable Red List.
(d) Laws and rules that rely on the standard of justifiable doubts often do not define that standard. This General Standard is intended to provide some context for making this determination. For example, because no one is allowed to be their own judge, there cannot be identity between an arbitrator and a party. The parties, therefore, cannot waive the conflict of interest arising in such a situation.
Import: