It is important not to blame the messenger. The International Bar Association Working Group and ensuing Guidelines on Conflict of Interest in International Commercial Arbitration not only included some of the most brilliant arbitrators, they also did brilliantly at finding common ground in a minefield that, until their involvement, was marked by both rigidity in international rules governing conflicts of interest and widely disparate practice in domestic jurisdictions. Nor should the Working Group and Guidelines be held responsible for a pervasive problem that has plague modern international commercial arbitration from the outset.
This essay explores the challenge, expressed by V.V. Veeder, that the guidelines governing conflict of interest is encouraging the “malign practice” of new tactical challenges to arbitrators. It also reflects on the unprecedented decision by the LCIA Court and Board to publish abstracts of the decisions in which arbitrators are challenged. Part I frames the issues explored in the article. Part II reflects on some false truisms that have traditionally been imputed to conflicts of interest in international commercial arbitration. Part III discusses the key attributes of conflict of interest, independence and impartiality. Part IV explores the IBA Guidelines. Part V concludes with some suggestions.
Date of this Version
Leon Trakman, "The Impartiality and Independence of Arbitrators Reconsidered" (April 2007). University of New South Wales Faculty of Law Research Series. Working Paper 25.