The 2024 IBA Guidelines on Conflicts of Interest in International Arbitration introduce key updates, including broader disclosure requirements and modernized conflict of interest rules, incorporating social media insights to reflect current arbitration practices.

The IBA Guidelines on Conflicts of Interest (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 setup of the 2024 IBA Guidelines originates back to 2004 (but dates all the way back to 1987) and was amended in 2014 and now again in 2024. The 2024 IBA Guidelines were drafted by the IBA Arbitration Committee and the IBA Arbitration Guidelines and Rules Subcommittee, in particular.

They have gained international recognition, and parties around the world expect arbitrators to weigh impartiality and independence and apply disclosure based on the IBA Guidelines.

Like previous versions, the 2024 IBA Guidelines are divided into two parts. The General Standards in Part I still hold the main provisions about impartiality, independence and disclosure. This is where some of the main amendments have been made, and such amendments stress the importance of the General Standards as compared to Part II containing a traffic light system with a non-waivable red, waivable red, orange, and green list which has become an industry standard in international arbitration.

The 2024 IBA Guidelines bring the former 2014 version up to date without changing the overall structure.

Amendments to the General Standards (Part I)

(3) DISCLOSURE BY THE ARBITRATOR

General Standard 3 confirms that the arbitrator’s disclosure obligation must include the issues in which the parties have an interest in order to be fully informed of any facts or circumstances that may be relevant in their view, but the arbitrator is never obliged to disclose issues subject to the green list.

The amendments in (3) of the General Standards of the 2024 IBA Guidelines spell out a few more obvious matters that were not mentioned in previous editions, such as:

If the arbitrator finds that the arbitrator should make a disclosure, but that professional rules of confidentiality or other rules 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.

(4) 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 circumstance. 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.

(7) DUTY OF THE PARTIES AND THE ARBITRATOR

General Standard 4 lays down duties on the part of the parties as well as the arbitrator, and the 2024 IBA Guidelines have added to the parties’ obligations to also include an obligation 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 own initiative at the earliest opportunity.

Changes in the practical application of the General Standards (Part II)

As already mentioned, Part II contains the traffic light system of the 2024 IBA Guidelines. 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 containing situations where there is a clear conflict of interest, which cannot be waived by the parties.
The WAIVABLE RED LIST containing situations where a conflict of interest is likely to exist, but where the parties may choose to waive it.
The ORANGE LIST containing situations where there is doubt as to whether a conflict of interest exists and which should therefore be disclosed.
The GREEN LIST containing 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 does not constitute radical but rather simple amendments reflecting that it has been ten years since the guidelines were last amended. The inclusion of social media in 3.4.2 above is a good example of keeping the 2024 IBA Guidelines up to date.

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.

About Bech-Bruun and the authors

Bech-Bruun is one of Denmark’s leading law firms, and Bech-Bruun’s Dispute Resolution Group is one of Denmark’s largest including approx. 40 lawyers. Johannes Grove Nielsen is head of the Dispute Resolution Group and has conducted a large number of international arbitrations. Camilla Søgaard Hudson specialises in shipping and is currently on the board of the Nordic Offshore & Maritime Arbitration Association.