The Guidelines on Conflicts of Interest in International Arbitration, or more commonly referred to as the IBA Guidelines, have recently been updated by the International Bar Association (“2024 IBA Guidelines”).
The 2024 IBA Guidelines maintain a two-part structure providing general standards regarding impartiality, independence and disclosure of arbitrators, and the practical application of those general standards. The update brings clarity to conflicts of interest and how to deal with them.
(a) General Standard 2 — Conflicts of Interest
General Standard 2 requires that an arbitrator decline an appointment or refuse to continue to act where there are doubts over his or her ability to be impartial or independent.
The arbitrator should bear in mind the objective standard to evaluate the relevant facts or circumstances, and where an objective conflict of interest exists, the appointment must be declined unless that objective conflict is waived pursuant to General Standard 4.
The 2024 IBA Guidelines make clear that an arbitrator should decline an appointment or cease acting where a justifiable doubt exists (in the sense of the Non-Waivable Red List); however, the arbitrator may make a disclosure in accordance with General Standard 3 where such doubts relate to those in the Waivable Red List.
(b) General Standard 3 — Disclosure by the Arbitrator
An arbitrator shall disclose facts and circumstances which in the eyes of the parties may give rise to doubts as to the arbitrator’s impartiality or independence.
A new provision (Item 3(e)) makes it clear that in situations where disclosure is required, but professional secrecy or other rules of practice or professional conduct prevent such disclosure, the arbitrator should not accept the appointment, or should resign. The stage of the arbitration must not influence the arbitrator’s decision as to whether the facts or circumstances should be disclosed.
