Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

In 2004, the International Bar Association (“IBA”) issued a publication entitled “Guidelines on Conflicts of Interest in International Arbitration” (“Guidelines”). These Guidelines addressed the issues of arbitrator impartiality and independence which are critical threshold matters in every arbitration, whether domestic or international. The Guidelines were designed by the IBA as an expression of best practices in the field, including a set of standards which would enhance legal certainty and preserve the integrity and fairness of arbitral proceedings. Following a review and revision of the Guidelines by the IBA’s Arbitration Committee instituted in 2012, the IBA Council adopted revised Guidelines on October 23, 2014.  This article addresses that document.

The Guidelines fill an important need for the arbitral community and for those parties whom it serves, in giving substantial case specific content to the very general standard that an arbitrator must be impartial and independent.  Nonetheless, because each factual situation which may be presented in this area is singular and different, and also because some of the judgments made by the Guidelines’ drafters are subject to valid criticism, their document cannot be the last word on the matter. In particular, as will be discussed, the drafters have unnecessarily conflated the issues of disclosure and of conflict, taking away important safeguards from the parties to arbitrations.