Discussion of the 2024 IBA Guidelines on Conflicts of Interest

Disclosure may be becoming more universal. But if the 'reasonable third person"?

Over the past week, I had the opportunity to discuss the 2024 IBA Guidelines on Conflicts of Interest with arbitration practitioners, in-house counsel and judges across Tashkent, Almaty and Bishkek.

One observation struck me across all three jurisdictions: the expectation of broad disclosure seems remarkably consistent.

Participants generally favoured disclosure beyond what the Guidelines strictly require – in some discussions, even of circumstances falling within the Green List, where there is no duty to disclose.

I find this convergence significant. In a genuinely international system, confidence in the process depends in part on parties trusting that potentially relevant circumstances will be disclosed. Expectations of transparency that travel across borders therefore matter for the legitimacy of international arbitration.

But the discussions became much more nuanced when we moved from disclosure to disqualification.

The Guidelines deliberately apply different tests. Disclosure considers what may, in the eyes of the parties, give rise to doubts about an arbitrator’s impartiality or independence. Disqualification applies an objective test – that of a reasonable third person knowing the relevant facts and circumstances.

Which led us to a harder question:

How universal is that “reasonable third person”?

Would the same circumstances necessarily produce the same decision on a challenge in different jurisdictions? To what extent might legal culture or the professional background of the decision-maker influence the application of an objective test?

Bishkek added another dimension. We held separate sessions with the arbitration community and with judges. While views on disclosure were broadly aligned, the judges were noticeably more restrained than some arbitration practitioners in considering certain circumstances sufficient for disqualification.

A few masterclasses obviously cannot answer the broader empirical question. But they made the question difficult to ignore.

Perhaps we are seeing increasing convergence around what should be disclosed, while considerably more room remains for divergence around what should disqualify an arbitrator.

Many thanks to my fellow lecturers Anna Guillard Sazhko, Prof. Dr. Islambek Rustambekov, Prof. Assel Duisenova, Prof. Farkhad Karagussov and Natalia Petrik , and to TAA, KIA, Narxoz, ICA CCI KR, TSUL and Tashkent Mediation Centre for making this series possible. Special thanks to Kate Brown de Vejar, Dietmar W. Prager, and Patricia Saiz at the International Bar Association Arbitration Committee for their leadership and continued support of the initiative.