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IBA Guidelines on Conflict of Interests in International Commercial Arbitration

ارسال شده توسط : ایلدار آقاقلیزاده خیاوی وکیل پایه یک دادگستری و مشاور حقوقی در تاریخ : 07-03-1390
نسخه چاپی ارسال به دوستان

مشاوره تلفنی با وکیل 09128304909

بخش بسیاری از خدمات سایت وکالت آنلاین رایگان میباشد ولی شما میتوانید با اهداء کمک های مالی خود ما را در خدمت رسانی بهتر یاری نمایید.
IBA Guidelines on Conflict of Interests in International Commercial Arbitration


Approved on 22 May 2004 by the Council of the
International Bar Association


Introduction
1. Problems of conflicts of interest increasingly challenge
international arbitration. Arbitrators are often unsure
about what facts need to be disclosed, and they may make
different choices about disclosures than other arbitrators
in the same situation. The growth of international
business and the manner in which it is conducted,
including interlocking corporate relationships and larger
international law firms, have caused more disclosures and
have created more difficult conflict of interest issues to
determine. Reluctant parties have more opportunities to
use challenges of arbitrators to delay arbitrations or to
deny the opposing party the arbitrator of its choice.
Disclosure of any relationship, no matter how minor or
serious, has too often led to objections, challenge and
withdrawal or removal of the arbitrator.
2. Thus, parties, arbitrators, institutions and courts face
complex decisions about what to disclose and what
standards to apply. In addition, institutions and courts
face difficult decisions if an objection or a challenge is
made after a disclosure. There is a tension between, on
the one hand, the parties’ right to disclosure of situations
that may reasonably call into question an arbitrator’s
impartiality or independence and their right to a fair
hearing and, on the other hand, the parties’ right to
select arbitrators of their choosing. Even though laws
and arbitration rules provide some standards, there is a
lack of detail in their guidance and of uniformity in their
application. As a result, quite often members of the
international arbitration community apply different
standards in making decisions concerning disclosure,
objections and challenges.
3. It is in the interest of everyone in the international
arbitration community that international arbitration
proceedings not be hindered by these growing conflicts
of interest issues. The Committee on Arbitration and
ADR of the International Bar Association appointed a
Working Group of 19 experts1 in international
arbitration from 14 countries to study, with the intent of
helping this decision-making process, national laws,
judicial decisions, arbitration rules and practical
considerations and applications regarding impartiality

and independence and disclosure in international
arbitration. The Working Group has determined that
existing standards lack sufficient clarity and uniformity in
their application. It has therefore prepared these
Guidelines, which set forth some General Standards and
Explanatory Notes on the Standards. Moreover, the
Working Group believes that greater consistency and
fewer unnecessary challenges and arbitrator withdrawals
and removals could be achieved by providing lists of
specific situations that, in the view of the Working Group,
do or do not warrant disclosure or disqualification of an
arbitrator. Such lists – designated Red, Orange and
Green (the ‘Application Lists’) – appear at the end of
these Guidelines.2
4. The Guidelines reflect the Working Group’s
understanding of the best current international practice
firmly rooted in the principles expressed in the General
Standards. The Working Group has based the General
Standards and the Application Lists upon statutes and
case law in jurisdictions and upon the judgment and
experience of members of the Working Group and others
involved in international commercial arbitration. The
Working Group has attempted to balance the various
interests of parties, representatives, arbitrators and
arbitration institutions, all of whom have a responsibility
for ensuring the integrity, reputation and efficiency of
international commercial arbitration. In particular, the
Working Group has sought and considered the views of
many leading arbitration institutions, as well as corporate
counsel and other persons involved in international
arbitration. The Working Group also published drafts of
the Guidelines and sought comments at two annual
meetings of the International Bar Association and other
meetings of arbitrators. While the comments received by
the Working Group varied, and included some points of
criticisms, the arbitration community generally supported
and encouraged these efforts to help reduce the growing
problems of conflicts of interests. The Working Group
has studied all the comments received and has adopted
many of the proposals that it has received. The Working
Group is very grateful indeed for the serious
considerations given to its proposals by so many
institutions and individuals all over the globe and for the
comments and proposals received.

5. Originally, the Working Group developed the Guidelines
for international commercial arbitration. However, in
the light of comments received, it realized that the
Guidelines should equally apply to other types of
arbitration, such as investment arbitrations (insofar as
these may not be considered as commercial
arbitrations).3
6. These Guidelines are not legal provisions and do not
override any applicable national law or arbitral rules
chosen by the parties. However, the Working Group
hopes that these Guidelines will find general acceptance
within the international arbitration community (as was
the case with the IBA Rules on the Taking of Evidence in
International Commercial Arbitration) and that they thus
will help parties, practitioners, arbitrators, institutions
and the courts in their decision-making process on these
very important questions of impartiality, independence,
disclosure, objections and challenges made in that
connection. The Working Group trusts that the
Guidelines will be applied with robust common sense and
without pedantic and unduly formalistic interpretation.
The Working Group is also publishing a Background and
History, which describes the studies made by the Working
Group and may be helpful in interpreting the Guidelines.

7. The IBA and the Working Group view these Guidelines as a beginning, rather than an end, of the process. The
Application Lists cover many of the varied situations that
commonly arise in practice, but they do not purport to be
comprehensive, nor could they be. Nevertheless, the
Working Group is confident that the Application Lists
provide better concrete guidance than the General
Standards (and certainly more than existing standards).
The IBA and the Working Group seek comments on the
actual use of the Guidelines, and they plan to
supplement, revise and refine the Guidelines based on
that practical experience.

8. In 1987, the IBA published Rules of Ethics for
International Arbitrators. Those Rules cover more topics
than these Guidelines, and they remain in effect as to
subjects that are not discussed in the Guidelines. The
Guidelines supersede the Rules of Ethics as to the matters
treated here.

Notes
1 The members of the Working Group are: (1) Henri Alvarez, Canada; (2) John
Beechey, England; (3) Jim Carter, United States; (4) Emmanuel Gaillard,
France, (5) Emilio Gonzales de Castilla, Mexico; (6) Bernard Hanotiau,
Belgium; (7) Michael Hwang, Singapore; (8) Albert Jan van den Berg, Belgium;
(9) Doug Jones, Australia; (10) Gabrielle Kaufmann-Kohler, Switzerland; (11)
Arthur Marriott, England; (12) Tore Wiwen Nilsson, Sweden; (13) Hilmar
Raeschke-Kessler, Germany; (14) David W. Rivkin, United States; (15) Klaus
Sachs, Germany; (16) Nathalie Voser, Switzerland (Rapporteur); (17) David
Williams, New Zealand; (18) Des Williams, South Africa; (19); Otto de Witt
Wijnen, The Netherlands (Chair).
2 Detailed Background Information to the Guidelines has been published in Business Law International at BLI Vol 5, No 3, September 2004, pp 433-458 and is available at the IBA website www.ibanet.org
3 Similarly, the Working Group is of the opinion that these Guidelines should apply by analogy to civil servants and government officers who are appointed as arbitrators by States or State entities that are parties to arbitration proceedings.

Part I: General Standards
Regarding Impartiality,
Independence And
Disclosure
(1) General Principle
Every arbitrator shall be impartial and independent of the parties at the time of accepting an appointment to serve and shall remain so during the entire arbitration proceeding until the final award has been rendered or the proceeding has otherwise finally terminated.

Explanation to General Standard 1:
The Working Group is guided by the fundamental principle in international arbitration that each arbitrator must be impartial and independent of the parties at the time he or she accepts an appointment to act as arbitrator and must remain so during the entire course of the arbitration proceedings.
The Working Group considered whether this obligation
should extend even during the period that the award may be challenged but has decided against this. The Working Group takes the view that the arbitrator’s duty ends when the Arbitral Tribunal has rendered the final award or the proceedings have otherwise been finally terminated (eg, because of a settlement). If, after setting aside or other proceedings, the dispute is referred back to the same arbitrator, a fresh round of disclosure may be necessary.

(2) Conflicts of Interest
(a) An arbitrator shall decline to accept an appointment or, if the
arbitration has already been commenced, refuse to continue to act as an arbitrator if he or she has any doubts as to his or her ability to be impartial or independent.
(b) The same principle applies if facts or circumstances exist, or have arisen since the appointment, that, from a reasonable third person’s point of view having knowledge of the relevant facts, give rise to justifiable doubts as to the arbitrator’s impartiality or

independence, unless the parties have accepted the arbitrator in accordance with the requirements set out in General Standard(4).
(c) Doubts are justifiable if a reasonable and informed third party would reach the conclusion that there was a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision.
(d) Justifiable doubts necessarily exist as to the arbitrator’s
impartiality or independence if there is an identity between a
party and the arbitrator, if the arbitrator is a legal representative of a legal entity that is a party in the arbitration, or if the arbitrator has a significant financial or personal interest in the matter at stake.
Explanation to General Standard 2:
(a) It is the main ethical guiding principle of every arbitrator
that actual bias from the arbitrator’s own point of view
must lead to that arbitrator declining his or her
appointment. This standard should apply regardless of
the stage of the proceedings. This principle is so selfevident
that many national laws do not explicitly say so.
See eg Article 12, UNCITRAL Model Law. The Working
Group, however, has included it in the General Standards
because explicit expression in these Guidelines helps to
avoid confusion and to create confidence in procedures
before arbitral tribunals. In addition, the Working Group
believes that the broad standard of ‘any doubts as to an
ability to be impartial and independent’ should lead to
the arbitrator declining the appointment.
(b) In order for standards to be applied as consistently as
possible, the Working Group believes that the test for
disqualification should be an objective one. The Working
Group uses the wording ‘impartiality or independence’
derived from the broadly adopted Article 12 of the
UNCITRAL Model Law, and the use of an appearance
test, based on justifiable doubts as to the impartiality or
independence of the arbitrator, as provided in Article
12(2) of the UNCITRAL Model Law, to be applied
objectively (a ‘reasonable third person test’). As
described in the Explanation to General Standard 3(d),
this standard should apply regardless of the stage of the
proceedings.

(c) Most laws and rules that apply the standard of justifiable
doubts do not further define that standard. The Working
Group believes that this General Standard provides some
context for making this determination.
(d) The Working Group supports the view that no one is
allowed to be his or her own judge; ie, there cannot be
identity between an arbitrator and a party. The Working
Group believes that this situation cannot be waived by the
parties. The same principle should apply to persons who
are legal representatives of a legal entity that is a party in
the arbitration, like board members, or who have a
significant economic interest in the matter at stake.
Because of the importance of this principle, this nonwaivable
situation is made a General Standard, and
examples are provided in the non-waivable Red List.
The General Standard purposely uses the terms ‘identity’
and ‘legal representatives.’ In the light of comments
received, the Working Group considered whether these
terms should be extended or further defined, but decided
against doing so. It realizes that there are situations in
which an employee of a party or a civil servant can be in a
position similar, if not identical, to the position of an
official legal representative. The Working Group decided
that it should suffice to state the principle.

(3) Disclosure by the Arbitrator
(a) If facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, the arbitrator shall disclose such facts or
circumstances to the parties, the arbitration institution or other appointing authority (if any, and if so required by the applicable institutional rules) and to the co-arbitrators, if any, prior to accepting his or her appointment or, if thereafter, as soon as he or she learns about them.
(b) It follows from General Standards 1 and 2(a) that an arbitrator who has made a disclosure considers himself or herself to be impartial and independent of the parties despite the disclosed facts and therefore capable of performing his or her duties as arbitrator. Otherwise, he or she would have declined the nomination or appointment at the outset or resigned.
(c) Any doubt as to whether an arbitrator should disclose certain facts or circumstances should be resolved in favor of disclosure.

(d) When considering whether or not facts or circumstances exist that should be disclosed, the arbitrator shall not take into account whether the arbitration proceeding is at the beginning or at a later stage.

Explanation to General Standard 3:
(a) General Standard 2(b) above sets out an objective test for
disqualification of an arbitrator. However, because of
varying considerations with respect to disclosure, the
proper standard for disclosure may be different. A
purely objective test for disclosure exists in the majority of
the jurisdictions analyzed and in the UNCITRAL Model
Law. Nevertheless, the Working Group recognizes that
the parties have an interest in being fully informed about
any circumstances that may be relevant in their view.
Because of the strongly held views of many arbitration
institutions (as reflected in their rules and as stated to the
Working Group) that the disclosure test should reflect
the perspectives of the parties, the Working Group in
principle accepted, after much debate, a subjective
approach for disclosure. The Working Group has
adapted the language of Article 7(2) of the ICC Rules for
this standard.
However, the Working Group believes that this principle
should not be applied without limitations. Because some
situations should never lead to disqualification under the
objective test, such situations need not be disclosed,
regardless of the parties’ perspective. These limitations to
the subjective test are reflected in the Green List, which
lists some situations in which disclosure is not required.
Similarly, the Working Group emphasizes that the two
tests (objective test for disqualification and subjective test
for disclosure) are clearly distinct from each other, and
that a disclosure shall not automatically lead to
disqualification, as reflected in General Standard 3(b).
In determining what facts should be disclosed, an
arbitrator should take into account all circumstances
known to him or her, including to the extent known the
culture and the customs of the country of which the
parties are domiciled or nationals.
(b) Disclosure is not an admission of a conflict of interest.
An arbitrator who has made a disclosure to the parties
considers himself or herself to be impartial and

independent of the parties, despite the disclosed facts, or
else he or she would have declined the nomination or
resigned. An arbitrator making disclosure thus feels
capable of performing his or her duties. It is the purpose
of disclosure to allow the parties to judge whether or not
they agree with the evaluation of the arbitrator and, if
they so wish, to explore the situation further. The
Working Group hopes that the promulgation of this
General Standard will eliminate the misunderstanding
that disclosure demonstrates doubts sufficient to
disqualify the arbitrator. Instead, any challenge should be
successful only if an objective test, as set forth above, is
met.
(c) Unnecessary disclosure sometimes raises an incorrect
implication in the minds of the parties that the disclosed
circumstances would affect his or her impartiality or
independence. Excessive disclosures thus unnecessarily
undermine the parties’ confidence in the process.
Nevertheless, after some debate, the Working Group
believes it important to provide expressly in the General
Standards that in case of doubt the arbitrator should
disclose. If the arbitrator feels that he or she should
disclose but that professional secrecy rules or other rules
of practice prevent such disclosure, he or she should not
accept the appointment or should resign.
(d) The Working Group has concluded that disclosure or
disqualification (as set out in General Standard 2) should
not depend on the particular stage of the arbitration. In
order to determine whether the arbitrator should
disclose, decline the appointment or refuse to continue
to act or whether a challenge by a party should be
successful, the facts and circumstances alone are relevant
and not the current stage of the procedure or the
consequences of the withdrawal. As a practical matter,
institutions make a distinction between the
commencement of an arbitration proceeding and a later
stage. Also, courts tend to apply different standards.
Nevertheless, the Working Group believes it important to
clarify that no distinction should be made regarding the
stage of the arbitral procedure. While there are practical
concerns if an arbitrator must withdraw after an
arbitration has commenced, a distinction based on the
stage of arbitration would be inconsistent with the
General Standards.

(4) Waiver by the Parties
(a) If, within 30 days after the receipt of any disclosure by the
arbitrator or after a party learns of facts or circumstances that could constitute a potential conflict of interest for an arbitrator, a party does not raise an express objection with regard to thatarbitrator, subject to paragraphs (b) and (c) of this General Standard, the party is deemed to have waived any potential conflict of interest by the arbitrator based on such facts or circumstances and may not raise any objection to such facts or circumstances at a later stage.
(b) However, if facts or circumstances exist as described in General Standard 2(d), any waiver by a party or any agreement by the parties to have such a person serve as arbitrator shall be regarded as invalid.
(c) A person should not serve as an arbitrator when a conflict of interest, such as those exemplified in the waivable Red List,
exists. Nevertheless, such a person may accept appointment as
arbitrator or continue to act as an arbitrator, if the following
conditions are met:
(i) All parties, all arbitrators and the arbitration institution
or other appointing authority (if any) must have full
knowledge of the conflict of interest; and
(ii) All parties must expressly agree that such person may
serve as arbitrator despite the conflict of interest.
(d) An arbitrator may assist the parties in reaching a settlement of the dispute at any stage of the proceedings. However, before doing so, the arbitrator should receive an express agreement by the parties that acting in such a manner shall not disqualify the arbitrator from continuing to serve as arbitrator. Such express agreement shall be considered to be an effective waiver of any potential conflict of interest that may arise from the arbitrator’s participation in such process or from information that the arbitrator may learn in the process. If the assistance by the arbitrator does not lead to final settlement of the case, the parties remain bound by their waiver. However, consistent with General Standard 2(a) and notwithstanding such agreement, the arbitrator shall resign if, as a consequence of his or her involvement in the settlement process, the arbitrator develops doubts as to his or her ability to remain impartial or independent in the future course of the arbitration proceedings.

Explanation to General Standard 4:
(a) The Working Group suggests a requirement of an explicit
objection by the parties within a certain time limit. In the
view of the Working Group, this time limit should also
apply to a party who refuses to be involved.
(b) This General Standard is included to make General
Standard 4(a) consistent with the non-waivable provisions
of General Standard 2(d). Examples of such
circumstances are described in the non-waivable Red List.
(c) In a serious conflict of interest, such as those that are
described by way of example in the waivable Red List, the
parties may nevertheless wish to use such a person as an
arbitrator. Here, party autonomy and the desire to have
only impartial and independent arbitrators must be
balanced. The Working Group believes persons with
such a serious conflict of interests may serve as arbitrators
only if the parties make fully informed, explicit waivers.
(d) The concept of the Arbitral Tribunal assisting the parties
in reaching a settlement of their dispute in the course of
the arbitration proceedings is well established in some
jurisdictions but not in others. Informed consent by the
parties to such a process prior to its beginning should be
regarded as effective waiver of a potential conflict of
interest. Express consent is generally sufficient, as
opposed to a consent made in writing which in certain
jurisdictions requires signature. In practice, the
requirement of an express waiver allows such consent to
be made in the minutes or transcript of a hearing. In
addition, in order to avoid parties using an arbitrator as
mediator as a means of disqualifying the arbitrator, the
General Standard makes clear that the waiver should
remain effective if the mediation is unsuccessful. Thus,
parties assume the risk of what the arbitrator may learn in
the settlement process. In giving their express consent,
the parties should realize the consequences of the
arbitrator assisting the parties in a settlement process and
agree on regulating this special position further where
appropriate.

(5) Scope
These Guidelines apply equally to tribunal chairs, sole arbitrators and party-appointed arbitrators. These Guidelines do not apply to nonneutral arbitrators, who do not have an obligation to be independent and impartial, as may be permitted by some arbitration rules or
national laws.
Explanation to General Standard 5:
Because each member of an Arbitral Tribunal has an
obligation to be impartial and independent, the General
Standards should not distinguish among sole arbitrators,
party-appointed arbitrators and tribunal chairs. With regard
to secretaries of Arbitral Tribunals, the Working Group takes
the view that it is the responsibility of the arbitrator to ensure
that the secretary is and remains impartial and independent.
Some arbitration rules and domestic laws permit partyappointed arbitrators to be non-neutral. When an arbitrator is serving in such a role, these Guidelines should not apply to him or her, since their purpose is to protect impartiality and independence.
(6) Relationships
(a) When considering the relevance of facts or circumstances to determine whether a potential conflict of interest exists or whether disclosure should be made, the activities of an arbitrator’s law firm, if any, should be reasonably considered in each individual case. Therefore, the fact that the activities of the arbitrator’s firm involve one of the parties shall not automatically constitute a source of such conflict or a reason for disclosure.
(b) Similarly, if one of the parties is a legal entity which is a member of a group with which the arbitrator’s firm has an involvement, such facts or circumstances should be reasonably considered in each individual case. Therefore, this fact alone shall not automatically constitute a source of a conflict of interest or a reason for disclosure.
(c) If one of the parties is a legal entity, the managers, directors and members of a supervisory board of such legal entity and any person having a similar controlling influence on the legal entity shall be considered to be the equivalent of the legal entity.

Explanation to General Standard 6:
(a) The growing size of law firms should be taken into
account as part of today’s reality in international
arbitration. There is a need to balance the interests of a
party to use the arbitrator of its choice and the
importance of maintaining confidence in the impartiality
and independence of international arbitration. In the
opinion of the Working Group, the arbitrator must in
principle be considered as identical to his or her law
firm, but nevertheless the activities of the arbitrator’s firm
should not automatically constitute a conflict of interest.
The relevance of such activities, such as the nature,
timing and scope of the work by the law firm, should be
reasonably considered in each individual case. The
Working Group uses the term ‘involvement’ rather than
‘acting for’ because a law firm’s relevant connections with
a party may include activities other than representation
on a legal matter.
(b) When a party to an arbitration is a member of a group of
companies, special questions regarding conflict of
interest arise. As in the prior paragraph, the Working
Group believes that because individual corporate
structure arrangements vary so widely an automatic rule
is not appropriate. Instead, the particular circumstances
of an affiliation with another entity within the same
group of companies should be reasonably considered in
each individual case.
(c) The party in international arbitration is usually a legal
entity. Therefore, this General Standard clarifies which
individuals should be considered effectively to be that
party.
(7) Duty of Arbitrator and Parties
(a) A party shall inform an arbitrator, the Arbitral Tribunal, the other parties and the arbitration institution or other appointing authority (if any) about any direct or indirect relationship between it (or another company of the same group of companies) and the arbitrator. The party shall do so on its own initiative before the beginning of the proceeding or as soon as it becomes aware of such relationship.
(b) In order to comply with General Standard 7(a), a party shall provide any information already available to it and shall

perform a reasonable search of publicly available information.
(c) An arbitrator is under a duty to make reasonable enquiries to investigate any potential conflict of interest, as well as any facts or circumstances that may cause his or her impartiality or independence to be questioned. Failure to disclose a potential conflict is not excused by lack of knowledge if the arbitrator makes no reasonable attempt to investigate.
Explanation to General Standard 7:
To reduce the risk of abuse by unmeritorious challenge of an
arbitrator’s impartiality or independence, it is necessary that
the parties disclose any relevant relationship with the
arbitrator. In addition, any party or potential party to an
arbitration is, at the outset, required to make a reasonable
effort to ascertain and to disclose publicly available
information that, applying the general standard, might affect
the arbitrator’s impartiality and independence. It is the
arbitrator or putative arbitrator’s obligation to make similar
enquiries and to disclose any information that may cause his
or her impartiality or independence to be called into
question.

PART II: Practical
Application of the
General Standards
1. The Working Group believes that if the Guidelines are to
have an important practical influence, they should reflect
situations that are likely to occur in today’s arbitration
practice. The Guidelines should provide specific
guidance to arbitrators, parties, institutions and courts as
to what situations do or do not constitute conflicts of
interest or should be disclosed.
For this purpose, the members of the Working Group
analyzed their respective case law and categorized
situations that can occur in the following Application
Lists. These lists obviously cannot contain every situation,
but they provide guidance in many circumstances, and
the Working Group has sought to make them as
comprehensive as possible. In all cases, the General
Standards should control.
2. The Red List consists of two parts: ‘a non-waivable Red
List’ (see General Standards 2(c) and 4(b)) and ‘a
waivable Red List’ (see General Standard 4(c)). These
lists are a non-exhaustive enumeration of specific
situations which, depending on the facts of a given case,
give rise to justifiable doubts as to the arbitrator’s
impartiality and independence; ie, in these circumstances
an objective conflict of interest exists from the point of
view of a reasonable third person having knowledge of
the relevant facts (see General Standard 2(b)). The nonwaivable
Red List includes situations deriving from the
overriding principle that no person can be his or her own
judge. Therefore, disclosure of such a situation cannot
cure the conflict. The waivable Red List encompasses
situations that are serious but not as severe. Because of
their seriousness, unlike circumstances described in the
Orange List, these situations should be considered
waivable only if and when the parties, being aware of the
conflict of interest situation, nevertheless expressly state
their willingness to have such a person act as arbitrator, as
set forth in General Standard 4(c).

3. The Orange List is a non-exhaustive enumeration of
specific situations which (depending on the facts of a
given case) in the eyes of the parties may give rise to
justifiable doubts as to the arbitrator’s impartiality or
independence. The Orange List thus reflects situations
that would fall under General Standard 3(a), so that the
arbitrator has a duty to disclose such situations. In all
these situations, the parties are deemed to have accepted
the arbitrator if, after disclosure, no timely objection is
made. (General Standard 4(a)).
4. It should be stressed that, as stated above, such disclosure
should not automatically result in a disqualification of the
arbitrator; no presumption regarding disqualification
should arise from a disclosure. The purpose of the
disclosure is to inform the parties of a situation that they
may wish to explore further in order to determine
whether objectively — ie, from a reasonable third
person’s point of view having knowledge of the relevant
facts — there is a justifiable doubt as to the arbitrator’s
impartiality or independence. If the conclusion is that
there is no justifiable doubt, the arbitrator can act. He or
she can also act if there is no timely objection by the
parties or, in situations covered by the waivable Red List,
a specific acceptance by the parties in accordance with
General Standard 4(c). Of course, if a party challenges
the appointment of the arbitrator, he or she can
nevertheless act if the authority that has to rule on the
challenge decides that the challenge does not meet the
objective test for disqualification.
5. In addition, a later challenge based on the fact that an
arbitrator did not disclose such facts or circumstances
should not result automatically in either nonappointment,
later disqualification or a successful
challenge to any award. In the view of the Working
Group, non-disclosure cannot make an arbitrator partial
or lacking independence; only the facts or circumstances
that he or she did not disclose can do so.
6. The Green List contains a non-exhaustive enumeration of
specific situations where no appearance of, and no actual,
conflict of interest exists from the relevant objective point
of view. Thus, the arbitrator has no duty to disclose
situations falling within the Green List. In the opinion of
the Working Group, as already expressed in the
Explanation to General Standard 3(a), there should be a

limit to disclosure, based on reasonableness; in some
situations, an objective test should prevail over the purely
subjective test of ‘the eyes of the parties.’
7. Situations falling outside the time limit used in some of
the Orange List situations should generally be considered
as falling in the Green List, even though they are not
specifically stated. An arbitrator may nevertheless wish to
make disclosure if, under the General Standards, he or
she believes it to be appropriate. While there has been
much debate with respect to the time limits used in the
Lists, the Working Group has concluded that the limits
indicated are appropriate and provide guidance where
none exists now. For example, the three-year period in
Orange List 3.1 may be too long in certain circumstances
and too short in others, but the Working Group believes
that the period is an appropriate general criterion,
subject to the special circumstances of any case.
8. The borderline between the situations indicated is often
thin. It can be debated whether a certain situation
should be on one List of instead of another. Also, the
Lists contain, for various situations, open norms like
‘significant’. The Working Group has extensively and
repeatedly discussed both of these issues, in the light of
comments received. It believes that the decisions
reflected in the Lists reflect international principles to
the best extent possible and that further definition of the
norms, which should be interpreted reasonably in light of
the facts and circumstances in each case, would be
counter-productive.
9. There has been much debate as to whether there should
be a Green List at all and also, with respect to the Red
List, whether the situations on the Non-Waivable Red List
should be waivable in light of party autonomy. With
respect to the first question, the Working Group has
maintained its decision that the subjective test for
disclosure should not be the absolute criterion but that
some objective thresholds should be added. With respect
to the second question, the conclusion of the Working
Group was that party autonomy, in this respect, has its
limits.

1. Non-Waivable Red List
1.1. There is an identity between a party and the arbitrator, or
the arbitrator is a legal representative of an entity that is a
party in the arbitration.
1.2. The arbitrator is a manager, director or member of the
supervisory board, or has a similar controlling influence
in one of the parties.
1.3. The arbitrator has a significant financial interest in one
of the parties or the outcome of the case.
1.4. The arbitrator regularly advises the appointing party or
an affiliate of the appointing party, and the arbitrator or
his or her firm derives a significant financial income
therefrom.
2. Waivable Red List
2.1. Relationship of the arbitrator to the dispute
2.1.1 The arbitrator has given legal advice or provided
an expert opinion on the dispute to a party or an
affiliate of one of the parties.
2.1.2 The arbitrator has previous involvement in the
case.
2.2. Arbitrator’s direct or indirect interest in the dispute
2.2.1 The arbitrator holds shares, either directly or
indirectly, in one of the parties or an affiliate of
one of the parties that is privately held.
2.2.2 A close family member4 of the arbitrator has a
significant financial interest in the outcome of the
dispute.
2.2.3 The arbitrator or a close family member of the
arbitrator has a close relationship with a third
party who may be liable to recourse on the part of
the unsuccessful party in the dispute.
2.3. Arbitrator’s relationship with the parties or counsel
2.3.1 The arbitrator currently represents or advises one
of the parties or an affiliate of one of the parties.
2.3.2 The arbitrator currently represents the lawyer or
law firm acting as counsel for one of the parties.
2.3.3 The arbitrator is a lawyer in the same law firm as
the counsel to one of the parties.
2.3.4 The arbitrator is a manager, director or member of
the supervisory board, or has a similar controlling
influence, in an affiliate5 of one of the parties if

the affiliate is directly involved in the matters in
dispute in the arbitration.
2.3.5 The arbitrator’s law firm had a previous but
terminated involvement in the case without the
arbitrator being involved himself or herself.
2.3.6 The arbitrator’s law firm currently has a significant
commercial relationship with one of the parties or
an affiliate of one of the parties.
2.3.7 The arbitrator regularly advises the appointing
party or an affiliate of the appointing party, but
neither the arbitrator nor his or her firm derives a
significant financial income therefrom.
2.3.8 The arbitrator has a close family relationship with
one of the parties or with a manager, director or
member of the supervisory board or any person
having a similar controlling influence in one of the
parties or an affiliate of one of the parties or with a
counsel representing a party.
2.3.9 A close family member of the arbitrator has a
significant financial interest in one of the parties
or an affiliate of one of the parties.
3. Orange List
3.1. Previous services for one of the parties or other
involvement in the case
3.1.1 The arbitrator has within the past three years
served as counsel for one of the parties or an
affiliate of one of the parties or has previously
advised or been consulted by the party or an
affiliate of the party making the appointment in an
unrelated matter, but the arbitrator and the party
or the affiliate of the party have no ongoing
relationship.
3.1.2 The arbitrator has within the past three years
served as counsel against one of the parties or an
affiliate of one of the parties in an unrelated
matter.
3.1.3 The arbitrator has within the past three years been
appointed as arbitrator on two or more occasions
by one of the parties or an affiliate of one of the
parties.6
3.1.4 The arbitrator’s law firm has within the past three
years acted for one of the parties or an affiliate of

one of the parties in an unrelated matter without
the involvement of the arbitrator.
3.1.5 The arbitrator currently serves, or has served
within the past three years, as arbitrator in another
arbitration on a related issue involving one of the
parties or an affiliate of one of the parties.
3.2. Current services for one of the parties
3.2.1 The arbitrator’s law firm is currently rendering
services to one of the parties or to an affiliate of
one of the parties without creating a significant
commercial relationship and without the
involvement of the arbitrator.
3.2.2 A law firm that shares revenues or fees with the
arbitrator’s law firm renders services to one of the
parties or an affiliate of one of the parties before
the arbitral tribunal.
3.2.3 The arbitrator or his or her firm represents a party
or an affiliate to the arbitration on a regular basis
but is not involved in the current dispute.
3.3. Relationship between an arbitrator and another
arbitrator or counsel.
3.3.1 The arbitrator and another arbitrator are lawyers
in the same law firm.
3.3.2 The arbitrator and another arbitrator or the
counsel for one of the parties are members of the
same barristers’ chambers.7
3.3.3 The arbitrator was within the past three years a
partner of, or otherwise affiliated with, another
arbitrator or any of the counsel in the same
arbitration.
3.3.4 A lawyer in the arbitrator’s law firm is an arbitrator
in another dispute involving the same party or
parties or an affiliate of one of the parties.
3.3.5 A close family member of the arbitrator is a
partner or employee of the law firm representing
one of the parties, but is not assisting with the
dispute.
3.3.6 A close personal friendship exists between an
arbitrator and a counsel of one party, as
demonstrated by the fact that the arbitrator and
the counsel regularly spend considerable time
together unrelated to professional work
commitments or the activities of professional
associations or social organizations.

3.3.7 The arbitrator has within the past three years
received more than three appointments by the
same counsel or the same law firm.
3.4. Relationship between arbitrator and party and others
involved in the arbitration
3.4.1 The arbitrator’s law firm is currently acting adverse
to one of the parties or an affiliate of one of the
parties.
3.4.2 The arbitrator had been associated within the past
three years with a party or an affiliate of one of the
parties in a professional capacity, such as a former
employee or partner.
3.4.3 A close personal friendship exists between an
arbitrator and a manager or director or a member
of the supervisory board or any person having a
similar controlling influence in one of the parties
or an affiliate of one of the parties or a witness or
expert, as demonstrated by the fact that the
arbitrator and such director, manager, other
person, witness or expert regularly spend
considerable time together unrelated to
professional work commitments or the activities of
professional associations or social organizations.
3.4.4 If the arbitrator is a former judge, he or she has
within the past three years heard a significant case
involving one of the parties.
3.5. Other circumstances
3.5.1 The arbitrator holds shares, either directly or
indirectly, which by reason of number or
denomination constitute a material holding in one
of the parties or an affiliate of one of the parties
that is publicly listed.
3.5.2 The arbitrator has publicly advocated a specific
position regarding the case that is being arbitrated,
whether in a published paper or speech or
otherwise.
3.5.3 The arbitrator holds one position in an arbitration
institution with appointing authority over the
dispute.
3.5.4 The arbitrator is a manager, director or member of
the supervisory board, or has a similar controlling
influence, in an affiliate of one of the parties,
where the affiliate is not directly involved in the
matters in dispute in the arbitration.

4. Green List
4.1. Previously expressed legal opinions
4.1.1 The arbitrator has previously published a general
opinion (such as in a law review article or public
lecture) concerning an issue which also arises in
the arbitration (but this opinion is not focused on
the case that is being arbitrated).
4.2. Previous services against one party
4.2.1 The arbitrator’s law firm has acted against one of
the parties or an affiliate of one of the parties in an
unrelated matter without the involvement of the
arbitrator.
4.3. Current services for one of the parties
4.3.1 A firm in association or in alliance with the
arbitrator’s law firm, but which does not share fees
or other revenues with the arbitrator’s law firm,
renders services to one of the parties or an affiliate
of one of the parties in an unrelated matter.
4.4. Contacts with another arbitrator or with counsel for one
of the parties
4.4.1 The arbitrator has a relationship with another
arbitrator or with the counsel for one of the parties
through membership in the same professional
association or social organization.
4.4.2 The arbitrator and counsel for one of the parties
or another arbitrator have previously served
together as arbitrators or as co-counsel.
4.5. Contacts between the arbitrator and one of the parties
4.5.1 The arbitrator has had an initial contact with the
appointing party or an affiliate of the appointing
party (or the respective counsels) prior to
appointment, if this contact is limited to the
arbitrator’s availability and qualifications to serve
or to the names of possible candidates for a
chairperson and did not address the merits or
procedural aspects of the dispute.
4.5.2 The arbitrator holds an insignificant amount of
shares in one of the parties or an affiliate of one of
the parties, which is publicly listed.
4.5.3 The arbitrator and a manager, director or member
of the supervisory board, or any person having a
similar controlling influence, in one of the parties
or an affiliate of one of the parties, have worked
together as joint experts or in another professional
capacity, including as arbitrators in the same case.
A flow chart is attached to these Guidelines for easy reference
to the application of the Lists. However, it should be stressed
that this is only a schematic reflection of the very complex
reality. Always, the specific circumstances of the case prevail.

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