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ICC clarifies when arbitrators should disclose potential conflicts of interest

The International Chamber of Commerce (ICC) International Court of Arbitration has detailed the circumstances in which an arbitrator should disclose a potential conflict of interest.24 Feb 2016

It has adopted new guidance to help arbitrators decide whether to disclose possible conflicts of interest in cases that they work on.

It is up to each arbitrator to decide whether a disclosure should be made, the ICC said. But the guidance note describes specific situations that may call the arbitrator's impartiality into question, including if the arbitrator or his or her law firm has represented one of the parties, has a business relationship with a party, or has a professional or close personal relationship with counsel for one of the parties or its law firm.

Parties to an arbitration have a legitimate interest in knowing anything that might affect the independence or impartiality of an arbitrator, the ICC said.

President of the Court, Alexis Mourre, says the guidance note "aims at ensuring that arbitrators are forthcoming and transparent in their disclosure of potential conflicts".

An arbitrators "duty to disclose" continues throughout an arbitration, and cannot be removed by an advance waiver, the ICC said.

The note makes it clear that a disclosure does not imply that a conflict exists: it is up to the Court to asses whether there is cause for disqualification, the ICC said. 

"The note forms part of our overarching strategy to enhance the transparency and predictability of the arbitration process in response to users' needs," Mourre said.

Arbitration expert Nicola King of Pinsent Masons, the law firm behind Out-Law.com said: "The ICC continues to provide guidance to the arbitral process, which aims to improve the efficiency and transparency for all users."

"Taking the time at the outset of the process to consider potential conflicts can reap benefits in the long run. The new guidance is timely in light of a recent decision of the French Cour de Cassation in which an international arbitrator was found to have failed in his duty to disclose a potential conflict of interest in respect of his law firm’s continuing representation of the parent company of one of the claimants," King said.

"There has also been another such decision by the English High Court where an arbitrator resigned at a court's behest after it emerged that he had been appointed a large number of times by the same claims handler," she said.

The ICC recently announced that it will now publish the names and nationality of arbitrators sitting on ICC cases on its website, with details of whether the appointment was made by the court or by the parties, and which arbitrator is the tribunal chairperson, as well as clear information on the cost consequences of delays in submitting draft arbitration awards.