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) If facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, the arbitrator shall disclose such facts or circumstances to the parties, the arbitration institution or other appointing authority (if any, and if so required by the applicable institutional rules), and the co-arbitrators, if any, prior to accepting their appointment or, if thereafter, as soon as the arbitrator learns of them. Subject to the arbitrator’s duty to investigate under General Standard 7(d), in determining whether facts or circumstances should be disclosed, an arbitrator should take into account all facts and circumstances known to the arbitrator.
(b) An advance declaration or waiver in relation to possible conflicts of interest arising from facts and circumstances that may arise in the future does not discharge the arbitrator’s ongoing duty of disclosure under General Standard 3(a).
(c) It follows from General Standards 1 and 2(a) that arbitrators who have made a disclosure consider themselves to be impartial and independent of the parties, despite the disclosed facts, and, therefore, capable of performing their duties as arbitrator. Otherwise, the arbitrators would have declined the nomination or appointment at the outset, or resigned.
(d) Any doubt as to whether an arbitrator should disclose certain facts or circumstances should be resolved in favour of disclosure.
(e) If the arbitrator finds that the arbitrator should make a disclosure, but that professional secrecy rules or other rules of practice or professional conduct prevent such disclosure, the arbitrator should not accept the appointment, or should resign.
(f) The stage of the arbitration must not influence the arbitrator’s decision as to whether facts or circumstances should be disclosed.
(g) An arbitrator’s failure to disclose certain facts and circumstances that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, does not necessarily mean that a conflict of interest exists, or that a disqualification should ensue.
Explanation to General Standard 3:
(a) The arbitrator’s duty to disclose under General Standard 3(a) rests on the principle that the parties have an interest in being fully informed of any facts or circumstances that may be relevant in their view. For its part, General Standard 3(d) provides that any doubt as to whether certain facts or circumstances should be disclosed should be resolved in favour of disclosure. However, situations, like those set out in the Green List, that could not give rise to doubts in the eyes of the parties, because no appearance of or actual conflict of interest exists from an objective point of view under General Standard 2, need not be disclosed. Further, as reflected in General Standard 3(c), a disclosure does not imply that the disclosed facts are such as to disqualify the arbitrator. The duty of disclosure under General Standard 3(a) is ongoing in nature.
(b) The IBA Arbitration Committee has considered the use by prospective arbitrators of declarations in respect of facts or circumstances that may arise in the future, and the possible conflicts of interest that may result, sometimes referred to as ‘advance waivers’. Such declarations do not discharge the arbitrator’s ongoing duty of disclosure under General Standard 3(a). The Guidelines, however, do not otherwise take a position as to the validity and effect of advance declarations or waivers, because the validity and effect of any advance declaration or waiver must be assessed in view of the specific text of the advance declaration or waiver, the particular circumstances at hand and the applicable law.
(c) A disclosure does not imply the existence of a conflict of interest. Arbitrators who have made a disclosure consider themselves to be impartial and independent of the parties despite the disclosed facts, or else the arbitrator would have declined the nomination, or resigned. An arbitrator making a disclosure thus feels capable of performing the arbitrator’s duties. It is the purpose of disclosure to allow the parties to judge whether they agree with the evaluation of the arbitrator and, if they so wish, to explore the situation further. This General Standard makes clear that disclosure itself cannot imply doubts sufficient to disqualify the arbitrator, or even create a presumption in favour of disqualification. Instead, any challenge should only be successful if the objective test, such as the one set forth in the Explanation to General Standard 2 above, is met.
(d-f) Disclosure or disqualification (as set out in General Standards 2 and 3) should not depend on the particular stage of the arbitration. In order to determine whether the arbitrator should disclose, decline the appointment, or refuse to continue to act, the facts and circumstances alone are relevant, not the current stage of the proceedings, or the consequences of the withdrawal. While there may be practical concerns if an arbitrator must withdraw after the arbitration has commenced, a distinction based on the stage of the arbitration would be inconsistent with the General Standards.
(g) A corollary to the fact that, as explained in Explanation to General Standard 3(c), a challenge may only be successful if an objective test is met, is General Standard 3(g), which makes clear that a failure to disclose certain facts and circumstances that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, does not necessarily mean that a conflict of interest exists, or that a disqualification should ensue.
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