1.                 Introduction

Since their introduction in 2004, the IBA Guidelines have become a widely accepted soft-law instrument reflecting international standards for arbitrator impartiality and independence. The 2024 Guidelines are organised into two parts: Part I sets out general standards regarding impartiality, independence and disclosure, while Part II addresses a number of situations that commonly arise in international arbitration, using a traffic light system of red, orange and green lists.

As the 2024 Guidelines underline, Part I contains the principles that must always be considered. Moreover, they stress that while the Application Lists contained in Part II cover many of the varied situations that commonly arise in practice, they do not purport to be exhaustive, nor could they be. Hence, the general standards must always be considered when assessing conflicts of interest and the need for disclosure and cannot be subordinated to the traffic light lists set out in Part II. In other words, the General Standards take precedence over the illustrative traffic light lists.

In the 2024 version both the General Standards and Application Lists have been updated and improved, bearing in mind their use in practice since 2014. The key changes are as follows:

2.   Part I: General Standards Regarding Impartiality, Independence and Disclosure

Amendments to the General Standards in Part I include:

• Disclosure prevented by professional secrecy rules/professional conduct: if an arbitrator finds that the arbitrator should make a disclosure but that professional secrecy rules or other rules of practice or professional conduct prevent this, new General Standard 3(e) sets out that the arbitrator must not accept the appointment or must resign if already appointed.
  
  
• Failure to disclose does not necessarily mean that a conflict of interest exists: failure to disclose certain facts and circumstances that may give rise to doubt as to an arbitrator’s impartiality or independence in the eyes of the parties does not necessarily mean that a conflict of interest exists or that disqualification should ensue. The fact that this is now included in General Standard 3(g) and not only in the explanation to General Standard 3 serves to underline this.
  
  
• Parties’ due diligence obligation: General Standard 4(a) includes a new final paragraph stating that parties are deemed to have learned of any facts or circumstances that would be obtained by conducting reasonable enquiry. Failure to raise objections based on such information within 30 days may result in the waiving of the right to raise them later.
  
  
• Relationship between arbitrators and their law firms or employers: General Standard 6 has been updated, particularly with regard to the definition of the term “law firm,” to bring it into line with the changing landscape and practices of international legal institutions.
  
  
• Relationship and controlling influence: also new in the 2024-version is that any legal entity or natural person having controlling influence over a party may be considered to bear the party’s identity, according to General Standard 6(c). The explanation to new General Standard 6(c) also addresses arbitrators’ disclosure obligations when dealing with states or state-owned entities.

3. Part II: Practical Application of the General Standards

Amendments to the traffic light lists in Part II include the following changes to the Orange List:

• Experts: a new item 3.1.6 has been added, applying to situations in which an arbitrator currently acts or has acted as an expert for one of the parties or an affiliate of one the parties in an unrelated matter within the last three years. Disclosure should also be made if the arbitrator has been appointed as an expert by the same counsel or law firm on more than three occasions within the past three years, as set out in new item 3.2.9. Pursuant to new item 3.3.6, disclosure should also be made if the arbitrator is instructing an expert who is appearing in the arbitration proceedings for another matter in which the arbitrator acts as counsel.  
  
  
• Mock trials: new item 3.2.10 sets out that disclosure should be made if the arbitrator has been appointed to assist in mock trials or hearing preparations by the same counsel or law firm on more than three occasions within the past three years.
  
  
• Co-arbitrators: when the arbitrator and the counsel for one of the parties are currently acting together as arbitrators in another case (item 3.2.12), or an arbitrator and their fellow arbitrator(s) are currently serving together as arbitrators in separate arbitration (item 3.2.13).
  
  
• Social media: if the arbitrator has publicly advocated a position on the case, this should be disclosed according to item 3.4.2, which now expressly includes through social media and on-line professional networking platforms. This is the only amendment concerning social media in the Guidelines.
  
  
• Participating in decisions with respect to the arbitration in administrative institutions or appointing authorities: Pursuant to revised item 3.4.3, disclosure should be made if an arbitrator holds a decision-making position with the administering institution or appointing authority with respect to the dispute, and has participated in decisions involving the arbitration in that position.

4.  Links to the relevant documents

The IBA Guidelines 2024 can be found here: IBA Guidelines on Conflicts of Interest in International Arbitration (ibanet.org)

The IBA Arbitration Committee comparison of the 2014 and 2024 Guidelines can be found here: document (ibanet.org)