Arbeitsbereich
IBA Conflict

IBA Conflict  
IBA Guidelines on Conflicts of Interest in International Arbitration (2024)

  1. In international arbitration, arbitrators are required to make disclosures to allow parties to identify and assess potential conflicts of interest, and institutions and national courts to address challenges properly. However, this exercise can be difficult, as conflicts questions may be nuanced, and answers are case-specific. Accordingly, in 2004, the IBA Arbitration Committee published guidelines on the subject, after having considered a variety of factors, including (i) the fundamental importance of independent and impartial arbitrators, (ii) the principle of party autonomy, (iii) the timing, nature, scope, burden, and other practicalities of disclosures, and (iv) the consequences and costs that could stem from frivolous challenges.
  2. The 2004 Guidelines reflected the view that the standards existing at the time lacked sufficient clarity and uniformity in their application. The 2004 Guidelines, therefore, set forth ‘General Standards and Explanatory Notes on the Standards’ (the ‘General Standards’). The General Standards were developed to be the primary source for evaluating the existence of conflicts of interest (adopting an objective, ‘reasonable third person test’) and the obligation to disclose (adopting a subjective, ‘in the eyes of the parties’ test).
  3. Nevertheless, to promote greater consistency and avoid unnecessary challenges and arbitrator withdrawals and removals, the 2004 Guidelines listed specific situations (designated ‘Red’, ‘Orange’ and ‘Green’ Lists) with the aim of illustrating the General Standards, assisting arbitrators in making their disclosures, and aiding parties in assessing whether disclosed information may be such as to create a doubt as to the arbitrator’s independence and impartiality. For the situations on the Red List, a conflict of interest is understood to exist. The situations on the Green List are understood not to create a conflict of interest or appearance thereof. The situations on the Orange List may, depending on the facts of a given case, give rise to a doubt in the eyes of the parties and must therefore be disclosed pursuant to General Standard 3. Such lists (the ‘Application Lists’) were updated in the 2014 revision to the Guidelines. In the 2024 revision, both the General Standards and Application Lists have been further updated and improved considering their use in practice since 2014.
  4. The Guidelines embody the understanding of the IBA Arbitration Committee as to the best current international practice, firmly rooted in the principles expressed in the General Standards below. The General Standards and the Application Lists are based upon statutes, practices, and case law and other decisions in a cross-section of jurisdictions, and upon the judgment and experience of the main participants in international arbitration. The Guidelines seek to balance the various interests of parties, counsel, arbitrators, and arbitration institutions, all of whom have a responsibility for ensuring the integrity, reputation, and efficiency of international arbitration. Like their predecessors, the members of the Task Force for the Revision of the 2014 Guidelines and the Arbitration Guidelines and Rules Subcommittee in 2021–2023 have further sought and considered the views of leading arbitration institutions, corporate counsel, and other persons involved in international arbitration, through public consultations at IBA annual meetings and at other meetings with, and surveys of, the international arbitration community. The comments received were reviewed in detail and many were adopted. The IBA Arbitration Committee is grateful for the serious consideration given to its proposals by so many institutions and individuals.
  5. The Guidelines apply to all international arbitration, whether the representation of the parties is carried out by lawyers or non-lawyers, and irrespective of whether non-legal professionals serve as arbitrators.
  6. These Guidelines do not override any applicable national law, arbitral rules, codes of conduct, or other binding instruments chosen by the parties. However, it is hoped that, as was the case for the 2004 and 2014 Guidelines and other sets of rules and guidelines of the IBA Arbitration Committee, the revised Guidelines will find broad acceptance within the international arbitration community, and that they will assist parties, counsel, arbitrators, institutions, and courts in dealing with these important questions of impartiality and independence. The IBA Arbitration Committee recommends that the Guidelines be applied with robust common sense and without unduly formalistic interpretation.
  7. Part I of the Guidelines contains the principles that must always be considered. The Application Lists contained in Part II cover many of the varied situations that commonly arise in practice, but they do not purport to be exhaustive, nor could they be. The IBA Arbitration Committee will continue to study the actual use of the Guidelines with a view to furthering their improvement.
  8. In 1987, the IBA published Rules of Ethics for International Arbitrators. Those Rules cover more topics than these Guidelines, and they remain in effect as to subjects that are not discussed in the Guidelines. The Guidelines supersede the Rules of Ethics as to the matters treated here.
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