IBA Conflict IBA Guidelines on Conflicts of Interest in International Arbitration (2024)
IBA Conflict
IBA Guidelines on Conflicts of Interest in International Arbitration (2024)
The first IBA Guidelines on Conflicts of Interest in International Arbitration (the ‘Guidelines’) were prepared by the IBA Arbitration Committee (through a working group of 19 experts) and adopted by the IBA Council in 2004. They immediately gained wide acceptance within the international arbitration community and have been recognised as a solid soft law instrument reflecting standards expected to apply to impartiality and independence of arbitrators, as well as disclosures in specific circumstances. The innovative traffic-light system of red, orange and green lists has become a worldwide norm in many respects. Practitioners apply the Guidelines as a default; most arbitration institutions and even courts also refer to them as an essential set of principles in the field. The need for such Guidelines is unchallenged. The only question is how the Guidelines should evolve over time to take into account developments in arbitral practice.
Consistent with the IBA Arbitration Committee’s practice of assessing every ten years whether its rules and guidelines should be adapted, the Guidelines were first revised in 2014 (further to a review conducted by a 27-member subcommittee). Whether and how the Guidelines should be revised requires careful consideration, determining through empirical analysis whether the practical application of the Guidelines has raised the need for clarification or improvement. When dealing with a body of principles with wide recognition, deciding on the extent of the amendments is by definition a sensitive exercise, as the objective must be to refine the applicable regime without affecting its rationale. Possible tensions as to how strict the Guidelines should be may arise from the wide application of the Guidelines, covering commercial and investment arbitration, as well as specialised arbitration schemes (e.g., maritime, sports, commodities), legal and non-legal professionals serving as arbitrator, etc. All such criteria must be factored in.
Under the leadership of Co-Chairs of the IBA Arbitration Committee, Samaa Haridi (2022) and Valeria Galíndez (2023), and Erica Stein as Co-Chair of the IBA Arbitration Guidelines and Rules Subcommittee (the ‘Subcommittee’), later joined by Claudia Frutos-Peterson, a new Task Force was set up for the revision of the 2014 Guidelines. A survey carried out by the Subcommittee in 2022 among arbitration practitioners confirmed that the Guidelines remain a useful and effective tool, but that a complete overhaul of the Guidelines was not warranted. The survey did, however, suggest areas where the Guidelines might need to be modernised or fine-tuned: (i) arbitrator disclosures; (ii) third-party funding; (iii) issue conflicts; (iv) organisational models for legal professionals in different jurisdictions (e.g., barristers’ chambers, vereins, etc.); (v) expert witnesses; (vi) sovereigns or their agencies and instrumentalities; (vii) non-lawyer arbitrators; and (viii) social media. The members of the Task Force were thus divided into teams to address these issues, along with a ninth team to examine whether any issues not identified by the 2022 survey should also be covered by a revision of the Guidelines.1 The Task Force team leaders and members (more than 60 in total) made tremendous efforts to complete their tasks in one year. The updated version of the Guidelines was submitted for public consultation, including to hundreds of arbitration institutions worldwide. The comments were gathered and analysed and, particularly when consensus was ascertained among the comments, they were taken into account when adopting the final version.
The Introduction to the 2024 Guidelines describes the overreaching goals of the Guidelines and their latest revision, followed by the General Standards regarding impartiality, independence and disclosure (Part I), and the practical application of the General Standards by way of lists of circumstances (Part II).
The amendments to the Guidelines have sought to emphasise the importance of the General Standards contained in Part I, which must always be taken into consideration - and cannot be considered subordinate to - the Application Lists contained Part II for evaluating conflicts of interest and the need for arbitrator disclosures. When the updates to the Application Lists in Part II are read in light of the reinforced General Standards in Part I, the Guidelines now reflect the degree of disclosure currently expected from arbitrators by users and the arbitration community at large.
The IBA Arbitration Committee addresses particular thanks to Valeria Galíndez and Erica Stein for their immense and outstanding work, as well as to the two Task Force Secretaries2 and Task Force Team Leaders3. Special thanks too to former IBA President and Arbitration Committee Co-Chair David Rivkin for his continued support and enthusiasm in providing wise solutions.
The Guidelines are available for download at www.ibanet.org/resources
Xavier Favre-Bulle
Chiann Bao
Co-Chairs of the Arbitration Committee
Chiann Bao
Co-Chairs of the Arbitration Committee
February 2024
1Arbitrator Disclosures: André Abbud; Julie Bédard; Juliana Castillo; Kun Fan; Jennifer Kirby; Noradèle Radjai; Mohamed S. Abdel Wahab; Galina Zukova. Third-Party Funding: Crina Baltag; Alfredo Bullard; Zarina Chinoy; Alice Fremuth-Wolf; Tom Glasgow; Duncan Watson. Issue Conflicts: Lawrence Boo; Ji Hi Jung; Silvia Marchili; Lucy Martinez; Alexis Mourre; Mallory Silberman. Organizational Models for Legal Professionals in Different Jurisdictions: Folashade Alli; Pierre Bienvenu; Beata Gessel; Sarah Grimmer; Barton Legum; Louise Reilly. Expert Witnesses: Daniela Bambaci; Pierre Burger; Stephanie Cohen; Frank Hormes; Jan Heiner Nedden; Jiří Urban. Sovereigns or Their Agencies and Instrumentalities: Nicolas Angelet; Giedrė Aukštuolienė; Dyalá Jimenez; Pál Kara; Christian Leathley; Sami Tannous. Non-Lawyer Arbitrators: Richard Apphun; Lauren Friedman; Marily Paralika; Sherina Petit; Paul Tichauer; Ren Qing. Social Media: Dániel Dózsa; Ricardo Dalmaso Marques; Sylvie Bebohi Ebongo; Christa Mueller; Harold Noh; Yoshimi Ohara; Sofia de Sampaio Jalles. Other Matters: Benan Arseven; Hilde van der Baan; David Blackman; Daniel Heilbron Chrispim; Sandra González; Khaled Abou El Houda.
2 David Blackman; Viva Dadwal.
3 Nicolas Angelet; Crina Baltag; Dániel Dózsa; Sarah Grimmer; Jan Heiner Nedden; Marily Paralika; Louise Reilly; Mallory Silberman; Hilde van der Baan; Galina Zukova.
Import: