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Originally from American Review of International Arbitration - ARIA

During the arbitrator appointment process, arbitrators are required to disclose
potential conflicts of interest and any facts that may give rise to an appearance of
partiality. During that process, some arbitrators seek to obtain from the parties an
“advance waiver” by which the parties agree that if certain conflicts of interest
arise in the future, the arbitrator may continue to serve.
To illustrate, in one case reported by a major arbitral institution, an arbitrator
asked the parties to agree to the following conditions:

in a global law firm of about 2000 lawyers … I cannot exclude that
lawyers in this firm will act in the future for or against one of the parties
or their affiliates. I will not act myself for or against any of the parties or
their affiliates during the arbitration proceeding. At the same time, I will
disclose any future act or circumstance that might, from the perspective of
any of the parties, put my independence as an arbitrator into question.

Some waiver requests go further and ask the parties to agree expressly that the
arbitrator need not make additional related disclosures. For example, in another
case reported by an arbitral institution, a prospective arbitrator requested the
parties to “accept that current or future member firms of [his group of firms] are
free . . . to accept instructions from or against any of the parties to this arbitration
. . . without any duty on [his] part to make any disclosure in connection with any
such instructions.”1

Though it is not uncommon for international arbitrators, particularly those in
global law firms, to seek advance waivers of potential conflicts of interest, there is
only limited available guidance concerning the use, validity, and enforceability of
such waivers. With the exception of the ICC, the major international arbitration
institutions have not issued rules or formal policy guidance on the subject.
Further, while the October 2014 revision of the International Bar Association
Guidelines on Conflicts of Interest (the “IBA Guidelines”) recognizes the
“increasing use” of advance waivers, the Guidelines take no “position as to the
validity and effect of advance declarations or waivers,” beyond opining that such
waivers “do not discharge the arbitrator’s ongoing duty of disclosure.” Instead,
the Guidelines advise, “[T]he validity and effect of any advance declaration or