Originially from: World Arbitration and Mediation Review (WAMR)

Probity Deconstructed—How Helpful, Really,
are the New International Bar Association
Guidelines on Conflicts of Interest in International Arbitration?
By
Markham Ball
Director, Alternative Dispute Resolution Center, International Law
Institute; Adjunct Professor, Georgetown University Law Center; former
partner, Holland & Knight, LLP.
One of the fundamental precepts of arbitration, be it international
or domestic arbitration, is that an arbitrator should be impartial and
independent. About two years ago, a Working Group of the International
Bar Association undertook the apparently straightforward task of giving
detailed content to the principles of impartiality and independence by
drafting “Guidelines” on arbitrator conflicts of interest. The Working
Group was made up of experienced and distinguished lawyers from
fourteen countries. After intensive discussion within the Working Group
and within the broader international arbitration community, the Guidelines
were completed, approved by the Council of the IBA, and published in
July 2004.
The genesis of this effort was the Working Group’s belief that
“existing standards lack sufficient clarity and uniformity in their
application.” There was too much uncertainty about when a potential
arbitrator should disclose a possibly disqualifying conflict of interest, and
about when such conflicts should in fact be deemed disqualifying. The
goal of the Working Group was to cure such uncertainties by drafting
Guidelines that were clear and detailed, and that could be applied
uniformly in international arbitrations in any and all countries. A
correlative goal was to eliminate what the Working Group called “overdisclosure”
of interests by potential arbitrators, to whom existing rules
provided insufficient guidance. This tendency to over disclose, the
Working Group said, could limit the availability of qualified arbitrators.
How the Guidelines Succeed and Fail
As published, the Guidelines meet these objectives only in part. In
fact, a review of the Guidelines suggests that some of the problems that
the Guidelines address may be essentially insoluble.
The Guidelines include a set of well-considered basic rules—“General
Standards”—on arbitrator impartiality and independence. The Standards
are supplemented by explanatory text and, most significantly, are