On 23 October 2014, the IBA Council passed a resolution adopting the anticipated revision to its “IBA Guidelines on Conflicts of Interests in International Arbitration” (2014 Guidelines), which have been widely used and referred to by practitioners and arbitrators in the decade since their adoption in 2004 (Original Guidelines). A copy of the 2014 Guidelines can be found by clicking here.
The 2014 Guidelines, published on 28 November, do not mark a substantial departure from the Original Guidelines, and instead make refined changes to reflect and inform current debates on issues in modern arbitral practice, and “the increased complexity in the analysis of disclosure and conflict of interest issues“. In clarifying the standards expected of arbitrators and parties, it is the aim of the 2014 Guidelines “that arbitration proceedings are not hindered by ill-founded challenges against arbitrators” or that “the legitimacy of the process [is] not affected by uncertainty and lack of uniformity“.
The 2014 Guidelines were drafted by the IBA Conflicts of Interest Subcommittee (IBA Subcommittee), which was made up of 27 leading arbitrators and arbitration practitioners, including Global Head of Herbert Smith Freehills International Arbitration Practice, Paula Hodges QC. The IBA Subcommittee consulted 150 arbitral practitioners by an online survey, as well as 19 arbitral institutions, and sought to reflect “diverse legal cultures and a range of perspectives, including counsel, arbitrators and arbitration users“.
Paula Hodges QC, Global Head of Herbert Smith Freehills’ International Arbitration Practice, says of the 2014 Guidelines that: “we hope that these new Guidelines will prove useful in providing more clarity and a level playing field to parties and arbitrators, striking the right balance between impartiality and due process on the one hand and unmeritorious challenges on the other”.
Christian Leathley, International Arbitration Partner in Herbert Smith Freehills’ London office, who is a member of the IBA Arbitration Committee, comments:Â “this is the product of a lot of work and in-depth consideration of the issues facing the sub-committee.Â It also drew on the practical experience of many arbitrators which helps ensure this is an instructive guide for all arbitration practitioners”.
Some of the key revisions are summarised as follows: