From Disclosure to Social Media: The 2024 IBA Guidelines Explored
Johannes Grove Nielsen and Camilla Søgaard Hudson of Bech-Bruun examine the 2024 IBA Guidelines on Conflicts of Interest, highlighting key amendments to the General Standards and the traffic light system. Notable updates include stricter disclosure requirements for arbitrators and the incorporation of modern elements such as social media, reflecting the evolving nature of international arbitration practices.
The International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration (the “2024 IBA Guidelines”) are an instrument of soft law that is very often applied in international arbitration by arbitrators around the world regardless of whether the arbitration is ad hoc or subject to the rules of a local or international arbitration centre.
The 2024 IBA Guidelines trace their origins to 2004, with antecedents dating back to 1987. They were amended in 2014 and again in 2024. Over time, they have gained considerable international recognition, with parties across the world expecting arbitrators to assess impartiality and independence and make disclosures in line with these Guidelines.
As with earlier versions, the 2024 IBA Guidelines are divided into two parts. Part I, which contains the General Standards, remains focused on the core principles of impartiality, independence, and disclosure. Notably, some of the key amendments have been made here, underscoring the significance of these General Standards in comparison to Part II, which features the traffic light system – a Non-Waivable Red List, a Waivable Red List, an Orange List and a Green List – that has become a standard in international arbitration.
Amendments to the General Standards (Part I)
Disclosure by the arbitrator
General Standard 3 affirms that an arbitrator’s duty of disclosure must encompass issues that could be relevant to the parties’ interests, ensuring they are fully informed of any facts or circumstances they may consider significant. However, the arbitrator is not required to disclose matters falling within the green list.
The amendments in General Standard 3 of the 2024 IBA Guidelines clarify several points that were previously unstated in previous versions, such as:
- If the arbitrator finds that the arbitrator should make a disclosure, but that professional rules of confidentiality or other laws of practice or professional conduct prevent such disclosure, the arbitrator should not accept the appointment or should resign.
- The arbitrator should not take into account whether the arbitration proceedings are at an early or a later stage.
- An arbitrator’s failure to disclose certain facts and circumstances that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence, does not necessarily mean that a conflict of interest exists, or that a disqualification should ensue.
Waiver by the parties
General Standard 4 provides that a party has waived its right to object to circumstances that may be a potential conflict of interest if it fails to do so within 30 days of becoming aware of such circumstances. As a new rule, it has now been added that:
- A party is deemed to have learned of any facts or circumstances under 4(a)(ii) that a reasonable enquiry would have yielded if conducted at the outset or during the proceedings.
Duty of the parties and the arbitrator
General Standard 4 lays down duties on the part of the parties as well as the arbitrator. The 2024 IBA Guidelines have expanded upon the parties’ obligations, now requiring them to inform the arbitrator about any known counsel advising on but not appearing in the matter. The parties are required to do so on their initiative at the earliest opportunity.
“The revision of the Guidelines reflects the fact that it has been ten years since they were last amended”.
Changes in the Practical Application of the General Standards (Part II)
As mentioned, Part II contains the traffic light system. This traffic light system has been widely used for the past twenty years and is well known in the industry, where it covers specific standard situations which could create doubt as to whether an arbitrator is considered conflicted or not. The traffic light system includes four different categories:
- The Non-Waivable Red List contains situations where there is a clear conflict of interest, which cannot be waived by the parties.
- The Waivable Red List contains situations where a conflict of interest is likely to exist, but where the parties may choose to waive it.
- The Orange List contains situations where there is doubt as to whether a conflict of interest exists and which should therefore be disclosed.
- The Green List contains situations where there is no conflict of interest and which should therefore not be disclosed.
The 2024 IBA Guidelines mainly include amendments to the Orange List to which the following paragraphs were added and now form part of the Orange List, thus subject to disclosure:
- 3.1.6 The arbitrator currently serves or has acted within the past three years, as an expert for one of the parties or an affiliate of one of the parties in an unrelated matter.
- 3.2.9 The arbitrator has, within the past three years, been appointed as an expert on more than three occasions by the same counsel or the same law firm.
- 3.2.10 The arbitrator has, within the past three years, been appointed to assist in mock trials or hearing preparations on more than three occasions by the same counsel or the same law firm.
- 3.2.12 An arbitrator and counsel for one of the parties currently serve together as arbitrators in another arbitration.
- 3.2.13 An arbitrator and their fellow arbitrator(s) currently serve together as arbitrators in another arbitration.
- 3.3.6 The arbitrator is instructing an expert appearing in the arbitration proceedings for another matter where the arbitrator acts as counsel.
Finally, Section 3.4.2 has been amended to include social media, and now reads:
- 3.4.2 The arbitrator has publicly advocated a position on the case, whether in a published paper or speech, through social media or online professional networking platforms, or otherwise.
Overall, the revision of the 2024 IBA Guidelines reflects the fact that it has been ten years since they were last amended. The inclusion of social media in 3.4.2 above exemplifies the effort to keep the 2024 IBA Guidelines current and relevant to modern practices.
Whether the 2024 IBA Guidelines will last until 2034 remains to be seen, but they will remain internationally accepted ethical standards of soft law, which will be highly valuable in international arbitration for years to come.
Bech-Bruun
