ICC Court adopts Guidance Note on conflict disclosures by arbitrators

The President of the Court, Alexis Mourre, says that it “aims at ensuring that arbitrators are forthcoming and transparent in their disclosure of potential conflicts”.

The Note – which is incorporated in the ICC Note to arbitrators and to parties – rests on the fundamental principle that parties to an arbitration have a legitimate interest in being fully informed of all facts or circumstances that may be relevant in their view in order to be satisfied that a prospective arbitrator or arbitrator is and remains independent and impartial or, if they so wish, to explore the matter further and/or take the possible courses of action contemplated by the ICC Rules.

The Note also makes it clear that a disclosure does not imply the existence of a conflict, and that, in the event of an objection or a challenge, it is for the Court to assess whether there is cause for disqualification.

Mr Mourre said: “Although a failure to disclose is not in and by itself a ground for disqualification, it will however be weighted by the Court in assessing whether an objection to confirmation or a challenge is grounded. There are potential consequences in failing to disclose”.

Arbitrators are invited to consider specifically certain situations.

The Note forms part of our overarching strategy to enhance the transparency and predictability of the arbitration process in response to users’ needs.

The Note maintains the subjective standard that applies to disclosures under the ICC Rules and, as such, it is for each arbitrator to assess whether a disclosure should be made. The Note however invites arbitrators, without prejudice of any other circumstance that may have to be disclosed, to consider specifically certain situations that may call into question their independence or impartiality in the eyes of the parties:

• The arbitrator or prospective arbitrator or his or her law firm represents or advises, or has represented or advised, one of the parties or one of its affiliates
• The arbitrator or prospective arbitrator or his or her law firm acts or has acted against one of the parties or one of its affiliates
• The arbitrator or prospective arbitrator or his or her law firm has a business relationship with one of the parties or one of its affiliates, or a personal interest of any nature in the outcome of the dispute
• The arbitrator or prospective arbitrator or his or her law firm acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise
• The arbitrator or prospective arbitrator or his or her law firm is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality
• The arbitrator or prospective arbitrator has a professional or close personal relationship with counsel for one of the parties or its law firm
• The arbitrator or prospective arbitrator acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates
• The arbitrator or prospective arbitrator acts or has acted as arbitrator in a related case
• The arbitrator or prospective arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel for one of the parties or its law firm.
• Further guidance on disclosures

The Note specifies that the duty to disclose is of an on-going nature, that it applies throughout the entire duration of the arbitration, and that it is not discharged by an advance waiver. It also stresses that arbitrators, in assessing whether a disclosure should be made, have the duty to make reasonable enquiries in their records, those of their law firm, and in other readily available materials.

For the scope of disclosures, an arbitrator will be considered as bearing the identity of his or her law firm, and a legal entity will include its affiliates. The Note also invites arbitrators to consider in each case relationships between arbitrators, or between members of the same barristers’ chambers, as well as with any entity having a direct economic interest in the dispute or an obligation to indemnify a party for the award.

Finally, the Note stresses that arbitrators have the duty to devote to the arbitration the necessary time to conduct the proceedings as diligently, efficiently and expeditiously as possible, and must indicate in their Statement of Acceptance the number of arbitrations in which they currently act as well as their availability in the following 24 months.

Mr Mourre added: “The Note forms part of our overarching strategy to enhance the transparency and predictability of the arbitration process in response to users’ needs.”

Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration

Click here to download the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (English).

Click here to see other practice notes, forms and checklists.