2024 IBA Guidelines on Conflicts of Interest in International Arbitration

The 2024 revision

Since their introduction in 2004, the IBA Guidelines have become a go-to guide for arbitrators, counsel, and arbitral institutions in identifying conflicts of interest and assessing the need for disclosures. The Guidelines were first revised in 2014.  A decade later, the IBA Guidelines have been updated, following a survey held among arbitration professionals and stakeholders by the IBA Arbitration Committee in 2022 and a public consultation.

While the 2024 amendments may appear relatively modest in comparison to the changes adopted in 2014 and amount to fine-tuning rather than an overhaul, they introduce notable updates, which align the IBA Guidelines with the recent developments in arbitral practices worldwide.

The two-part structure has been retained. Part I covers the overarching principles concerning impartiality, independence and disclosure. Part II lists common scenarios in international arbitration, which are categorised in a ‘Red’, ‘Orange’ and ‘Green’ traffic-light system.

Principles

General Standard 1 (General Principle of Impartiality and Independence) now confirms that the obligation of impartiality and independence does not extend to the time period during which an award may be challenged before any relevant courts or other bodies (i.e. arbitration institutions). This amendment clarifies that the obligation of impartiality and independence ceases once the tribunal has made its final award. However, the obligation does extend to the time reserved for any correction to the arbitral award. The IBA Guidelines now provide that where a dispute is referred back to the same arbitral tribunal, a fresh round of disclosure and review of conflicts will be necessary as opposed to may in the 2014 Guidelines.

The amendment to General Standard 2 clarifies that when a justifiable doubt exists (examples can be found in the Non-Waivable Red List), an arbitrator should decline the appointment in question or refuse to act.

A new General Standard 3(e) has been introduced, which advises arbitrators against accepting appointments, or resigning following an appointment if they believe disclosure is necessary, but the arbitrator is impeded by professional secrecy rules or other confidentiality obligations.

General Standard 4 (Waiver) has been updated to include a presumption of knowledge of any facts or circumstances that a party would have discovered upon a “reasonable enquiry”, thus reflecting the parties’ duty of curiosity. This reiterates the responsibility of a party to conduct its own investigations in relation to potential conflicts of interests involving arbitrators (whether currently appointed or to be appointed in the future). A failure by a party to object to an arbitrator within 30 days after gaining knowledge (through disclosures or otherwise) of a fact or  circumstance that could amount to a potential conflict of interest constituted a waiver of that party’s right to “raise any objection based on such facts or circumstances at a later stage”. The exceptions, of course, are the Non-Waivable Red List items or the Waivable Red List items, for which the express consent of all involved was not obtained. General Standard 4 has now been revised to extend this rule to any facts or circumstances that a party could have learned through “a reasonable enquiry […] conducted at the outset or during the proceedings.”

In General Standard 6 (Relationships), to adjust to the evolving structure of international legal practices, the IBA Guidelines now make a more general reference to the arbitrator’s employer (rather than simply a reference to a law firm).

Specific scenarios: new disclosure obligations

The traffic-lights system lists common situations likely to occur in arbitration practice and provides non-exhaustive examples of where a conflict of interest may be present or perceived:

• The Red List consists of two parts: Non-Waivable and Waivable Red Lists; where a conflict of interest exists from the perspective of a reasonable third person having knowledge of the relevant facts and circumstances. The Waivable Red List covers situations that are serious but not as severe as the Non-Waivable Red List.
• The Orange List; where, in the eyes of parties, doubts may arise as to the arbitrator’s impartiality or independence, and the arbitrator has a duty to disclose such situations.
• The Green List; where no appearance and no actual conflict of interest can exist, and arbitrators have no duty to disclose such situations.

No substantive changes were made to the Red List.

The Green List introduces a single new circumstance in the 2024 Guidelines when the arbitrator, acting as arbitrator in another matter, heard testimony from an expert appearing in the current proceedings.

The most significant changes were introduced to the Orange List, which was expanded. Disclosure is now required when:

1. The arbitrator currently serves, or has acted within the past three years, as an expert for one of the parties or appointed by counsel in unrelated matters (3.1.6 and 3.2.9)
2. The arbitrator and another arbitrator are lawyers in the same law firm or have the same employer (3.2.1)
3. The arbitrator has, within the past three years, been appointed to assist in mock-trials or hearing preparations on more than three occasions by the same counsel or the same law firm (3.2.10)
4.  An arbitrator and counsel for one of the parties currently serve together as arbitrators in another arbitration (3.2.12)
5. An arbitrator and their fellow arbitrator(s) currently serve together as arbitrators in another arbitration (3.2.13)
6. The arbitrator is instructing an expert appearing in the arbitration proceedings for another matter where the arbitrator acts as counsel (3.3.6)
7. The arbitrator has publicly advocated a position on the case, whether in a published paper or speech, through social media or on-line professional networking platforms, or otherwise (3.4.2)
8. The arbitrator holds an executive or other decision-making position with the administering institution or appointing authority regarding the dispute and in that position has participated in decisions in the arbitration (3.4.3).

Final comments

The 2024 revisions to the IBA Guidelines on Conflicts of Interest in International Arbitration include changes in arbitral practice since 2014 and reflect recent debates within the international arbitration community. In the coming years, the IBA Guidelines will continue to play a crucial role in promoting transparency, fairness, and integrity in international arbitration. Their consistent application is necessary to help protect arbitration from the criticism and potential abuses to which it is exposed as a private method of dispute resolution, and contribute to the effectiveness and credibility of arbitration.