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Enhancing Transparency and Diligence: A Closer Look at the 2024 IBA Guidelines on Conflicts of Interest
Enhancing Transparency and Diligence: A Closer Look at the 2024 IBA Guidelines on Conflicts of Interest
Introduction:
In February 2024, the Arbitration Committee of the International Bar Association (IBA) released the Revised Guidelines on Conflicts of Interest in International Arbitration, marking a significant update to the existing framework established in 2004 and revised in 2014. While the changes may seem subtle at first glance, the 2024 IBA Guidelines emphasize the importance of transparency, impartiality, and independence in arbitration proceedings, placing increased responsibility on both arbitrators and parties to uphold these principles.
Revised General Standard 4: Strengthening Due Diligence Requirements:
Under the Revised General Standard 4, parties are required to conduct reasonable inquiries at the outset or during proceedings to identify any facts or circumstances that could give rise to a potential conflict of interest. Failure to object to an arbitrator within a reasonable time frame after gaining knowledge or constructive knowledge of such circumstances may result in a waiver of the party's right to challenge the arbitrator's independence or impartiality. This extension of the waiver rule to include constructive knowledge aims to discourage frivolous challenges and promotes diligence in the assessment of arbitrators' backgrounds.
Implications of the Reasonableness Requirement:
The inclusion of a reasonableness requirement raises questions about the extent of parties' duty of curiosity in the digital age, where information about arbitrators' relationships may be widely accessible online. While parties are expected to undertake reasonable inquiries, the Guidelines recognize the evolving nature of social media platforms and the challenges associated with conducting exhaustive investigations. This balanced approach acknowledges the need for diligence while avoiding undue burden on parties.
Addressing Novel Questions in Arbitration:
Recent cases, such as WADA v. Sun Yang, highlight the importance of parties' duty of curiosity in uncovering potential conflicts of interest. The Swiss Federal Tribunal's decision to annul a Court of Arbitration for Sport (CAS) award due to undisclosed relationships underscores the significance of thorough disclosure. The 2024 IBA Guidelines provide a framework for parties to navigate these issues, ensuring transparency and fairness in arbitration proceedings.
General Standard 7: Expanding Disclosure Obligations
The Revised Guidelines also expand the disclosure obligations outlined in General Standard 7, requiring parties to inform all involved parties, including arbitrators, of any relevant relationships that may impact independence and impartiality. This includes relationships with entities over which a party has a controlling influence, as well as any other relationships that parties believe arbitrators should consider when making disclosures. By placing the burden on parties to assess and disclose relevant relationships, the Guidelines promote transparency and facilitate comprehensive disclosures.
Conclusion: Fostering Transparency and Accountability
The 2024 IBA Guidelines represent a significant step forward in promoting transparency, impartiality, and independence in international arbitration. By enhancing due diligence requirements for parties and expanding disclosure obligations, the Guidelines contribute to a more robust framework for identifying and addressing conflicts of interest. As arbitration continues to evolve, adherence to these principles will be crucial in ensuring the integrity and fairness of dispute resolution processes worldwide.
- Under the Revised General Standard 4, parties are required to conduct reasonable inquiries at the outset or during proceedings to identify any facts or circumstances.
- While parties are expected to undertake reasonable inquiries, the Guidelines recognize the evolving nature of social media platforms.
- This includes relationships with entities over which a party has a controlling influence, as well as any other relationships that parties believe arbitrators should consider when making disclosures.
