Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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I. INTRODUCTION

International arbitrators almost universally share a sense of duty about what it means to perform their function. Historically, this internal ethos was the only thing that guided arbitrators’ conduct. Today, instead of being reserved to personal reflection, arbitrator ethics have become an important topic of public debate, and the subject of new rules and standards. Several trends in the international arbitration community account for this shift.

As international arbitration has become more popular, there has been a dramatic expansion in the pool of arbitrators, and a commensurate diversification of the cultural and legal traditions among them and among parties. Relatedly, both law firms and corporations have become larger and their structures more complex, raising new and more subtle questions about what might constitute a conflict of interest. This growth, increased complexity, and diversification have raised new challenges to the previous consensus among arbitrators and parties about what is right with regard to arbitrator conduct.

Parallel to these developments, there have also been changes in international arbitration practice. On the one hand, arbitral practice has become more transparent and subject to more specific rules. Historically, substantive decisionmaking was subject to flexible doctrines of amiable compositeurs and ex aequo et bono, as well as lex mercatoria. Today, parties most often prefer the predictability of national laws, while arbitral procedures have also become more transparent and regular. There has also been a significant increase in the number of challenges to arbitrators in recent years, which has focused attention on the standards used to evaluate arbitrator conduct. Together, these trends have triggered an interest in standardizing arbitrator selection and conduct through clearer rules.

These various trends have led to a proliferation of specialized codes of ethics and rules intended to guide and govern arbitrators’ conduct. In national courts, where challenges to arbitrators and awards are brought, a growing number of decisions have also contributed to provide more concrete guidance (and occasionally some misdirection) about what the various standards mean and how they apply in practice.

In light of these developments, international arbitrators and parties must be aware of how arbitrator ethics affect arbitral proceedings and, consequently, their rights and obligations in those proceedings. This Chapter provides an overview of the essential considerations for arbitrators and parties. It begins by providing an overview of the sources that define the obligations of arbitrators, and then outlines and discusses the various obligations, beginning with the most critical obligation of impartiality.