criticism given amounted to only one granular aspect of them; not the IBA guidelines generally. The ICC guidelines are a helpful clarifying tool in respect of an arbitrator’s disclosure obligations in ICC arbitrations; especially in respect of third party funding. However, none of this represents anything akin to a seismic shift in how to approach conflicts.
One prevailing theme from the cases and the ICC guidance update is the need for arbitrators to lead an open and honest conflict disclosure process. At the heart of any arbitral appointment is the trust that the parties have in the arbitrator’s integrity and judgment. Factors bearing down on an arbitrator not to disclose any potential conflicts should be resisted and a long-term view should be adopted. The arbitration community is relatively small and if an arbitrator does not disclose a conflict which subsequently emerges, then that arbitrator’s reputation will be undermined. As unfortunate as it may be to lose an appointment, it would be more unfortunate to never be appointed again. The general rule for arbitrators still stands; if in doubt, disclose.
In the circumstance where a party does challenge an arbitrator’s independence, it is key that the arbitrator must try to avoid descending into the arena as their continued credibility relies upon it. This can be difficult, especially if there are suggestions of dishonesty and improper conduct at play in the heat of the arbitration, but it is essential in order that the issues can be fairly heard, the arbitrator retains credibility and the process can run smoothly through to its natural conclusion with the least disruption as possible.
There are lessons to be learnt here for arbitrating parties as well. Whilst it is often commentated on that parties try things in arbitrations that they would not dream of doing in litigation, parties should still act as reasonably and transparently as possible. For a party to use allegations of an arbitrator’s conflict when they do not believe things are going their way is at the very least distasteful, and, at most, an abuse of process. If a party has any concerns in respect of an arbitrator it is before, it should raise them in good time and as courteously as possible, remembering always that the arbitrator is not its adversary.
Finally, arbitral institutions must also ensure they play the appropriate role in trying to prevent issues of conflict or bias from arising in the first place. Perhaps most importantly, they should ensure that the declarations and forms they ask arbitrators to complete are, in fact, completed in full (and then properly considered) before each arbitrator is appointed.
This article originally appeared in the June 2016 edition of the Civil Engineering Surveyor.
Author Profile
Kate Corby is a partner in Baker & McKenzie’s Dispute Resolution team in London. Kate has substantial experience of representing clients in complex litigation and arbitration, with a focus on construction and engineering disputes. She also has significant experience in advising on product liability, safety and regulatory compliance.