Author: Dr. Carlos Alberto Matheus López 🇵🇪
Professor, lawyer and CAS arbitrator
Versions of the article availables in others languages:
Published and translated by the firm Winter – Dávila & Associés
Paris, 2 April 2024
The updated version of the 2024 IBA Guidelines on Conflicts of Interest in International Arbitration has just been published.
And among the modifications, with respect to the 2014 version, we note that the Explanatory Note (b) and (c) on General Standard 2 -on Conflicts of Interest-, of Part I, now specifies that the arbitrator must use an “objective standard” to assess the relevant facts or circumstances when deciding whether not to accept an appointment or to withdraw from the arbitration.
For its part, General Standard 3 – on Disclosures by the Arbitrator – of Part I, incorporates in paragraph (e) a provision according to which when the arbitrator considers that he or she should make a disclosure, but that the rules of professional secrecy, practice or professional conduct prevent the disclosure, then the arbitrator should not accept the appointment or should resign.
Also, in Part I, point 4(a), on waiver of the right to object to conflict of interest, a paragraph is added that incorporates a rule that a party shall be deemed to have had knowledge of any fact or circumstance that a “reasonable enquiry” would have established. However, this syntagma is an indeterminate legal concept that will require, in order to be properly interpreted in a specific case, the use – inter alia – of dogmatic and jurisprudential criteria.
Likewise, in the Orange List of Part II, new circumstances have been incorporated that fall under it. For example, point 3.1.6 is added, which regulates the case where the arbitrator is currently acting, or has acted in the last three years, as an expert of one of the parties or an affiliate of one of the parties in an unrelated matter. Likewise, point 3.2.9 is added, which regulates the case of an arbitrator who, in the last three years, has been appointed as an expert on more than three occasions by the same lawyer or by the same law firm. Likewise, point 3.2.10 is added, which regulates the case of the arbitrator who, in the last three years, has been appointed to assist in mock trials or preparation of hearings on more than three occasions by the same lawyer or by the same law firm.
Likewise, point 3.2.12 is added, which regulates the case of the arbitrator who, at present, with the lawyer of one of the parties, act together as arbitrators in another arbitration. Likewise, section 3.2.13 is added, which regulates the case of the arbitrator who, at present, together with his co-arbitrators, form an arbitral tribunal in another arbitration.
Similarly, point 3.3.6 is incorporated, which regulates the case of the arbitrator who is instructing an expert who appears in the arbitration, for another matter in which the arbitrator acts as counsel. Likewise, in section 3.4.2, which regulates the case of an arbitrator who has publicly stated a specific position on an arbitration issue through a publication, speech or in any other way, the assumption that he or she does so “through social networks or online professional networking platforms” is added.
Likewise, in section 3.4.3, which regulates the case of an arbitrator who holds a position in the arbitral institution with the power to appoint arbitrators in the arbitration, it is specified that it may be “an executive or decision-making position in the administering institution or appointing authority relating to the dispute and in that position has participated in decisions with respect to the arbitration”.
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And in the Green List in Part II, a new case has been incorporated in 4.5.1 which regulates the case of an arbitrator who, when acting as arbitrator in another case, heard the testimony of an expert appearing in the present arbitration.
On the other hand, we are pleased to note that the amendments have overcome some previous weaknesses and contradictions. Such as the one we highlighted in an article published on Linkedin in 2017, entitled “Weaknesses and Contradictions of the IBA Guidelines on Conflicts of Interest in International Arbitration” (https://lnkd.in/efpZCe3s), relating to point 1.4 of the Unwaivable Red List – 2014 version – which regulated the case in which the law firm of which the arbitrator is a member regularly advises an entity affiliated to one of the parties, without referring to the arbitrator’s knowledge – or lack thereof – of such advice. This, in accordance with Part I, paragraph 2(d), simply raised justifiable doubts as to the arbitrator’s impartiality or independence as an unwaivable Red List situation. This was in contradiction with Part I, point 6(a), which stated that this situation should be considered on a case-by-case basis, but does not necessarily create a conflict of interest.
The current wording of point 1.4 of the Unwaivable Red List -version 2024- eliminates this contradiction by deleting the phrase “or his or her law firm” and now states that “The arbitrator currently or regularly advises a party, or an affiliate of a party, and the arbitrator or the arbitrator’s firm or employer derives significant financial income therefrom”.
Finally, you can access the IBA Guidelines on Conflicts of Interest in International Arbitration 2024, through the following link:
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