The IBA Guidelines on Conflict of Interest in International Arbitration have been widely recognized as the leading global soft law instrument in the international legal system.
Written by Jing (Catherine) Ou
The arbitrators often turn to the Guidelines when they make decisions regarding potential appointments or arbitrator disclosures. The parties and their counsels turn to the Guidelines to determine the impartiality and independence of arbitrators. The tribunals would refer to the Guidelines when ruling on applications to set aside arbitral awards.
The 2024 edition of the IBA Guidelines on Conflicts of Interest in International Arbitration were issued in late February. The amendments to the Guidelines have sought to emphasize the importance of the seven general standards of independence, impartiality and duty of disclosure to govern the selection, appointment and continuing role of an arbitrator, which are set out in Part I of the 2024 IBA Guidelines on Conflicts of Interest. The Practical Application Lists contained in Part II of the 2024 IBA Guidelines on Conflicts of Interest provide important guidance on evaluating conflicts of interest and the need for arbitrator disclosures through a “traffic light” system.
The Canadian court has addressed the issue of the arbitrator’s duty to disclose in circumstances where an arbitrator has taken multiple appointments at the same time in Aroma Franchise Company Inc. et al. v Aroma Espresso Bar Canada Inc., 2023 ONSC 1827. The Ontario Superior Court of Justice held that the arbitrator should have made disclosure, and set aside two international arbitral awards (on the merits and as to costs and interest) on the basis that the circumstances gave rise to a reasonable apprehension of bias. The Ontario Court of Appeal heard the appeal on December 6, 2023.
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