Full Disclosure: How Much Information Do We Require of Our Arbitrators?

Author:Ms Rachel Bendayan
Profession:Ogilvy Renault
 
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The disclosure of information required of arbitrators is becoming increasingly onerous. But how far must arbitrators go in disclosing their agendas, mandates and lists of acquaintances?

The ICC Rules of Arbitration

The International Chamber of Commerce (the "ICC"), one of the leading institutions for administering international commercial arbitration, has been paying particular attention to this issue. Like almost all arbitral institutions, the ICC requires arbitrators to be both independent and impartial.1 Article 7(2) of the ICC Rules of Arbitration requires that all prospective arbitrators "sign a statement of independence and disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties."2 The Secretariat then provides this information directly to the parties for comments.3

The IBA Guidelines

Most national lex arbitri and institutional rules of arbitration require that arbitrators be independent of the parties and their representatives, and impartial vis-à-vis the issue in dispute, that is, free of prejudice or prejudgment.4 While these are, properly speaking, "states of mind", which may be difficult to define with precision, the practice that has evolved internationally reflects a certain level of consistency.5 This practice was skilfully collated by a working group of international arbitration experts into the IBA Guidelines on Conflicts of Interest in International Arbitration (the "IBA Guidelines").6 Part I of the IBA Guidelines provides seven principal "General Standards" on independence and impartiality. Part II sets out the "Application Lists", which are three colour-coded "lists of specific situations that, in the view of the Working Group, do or do not warrant disclosure or disqualification of an arbitrator."7

Nevertheless, much continues to be written about the increasing number of challenges to the independence and impartiality of arbitrators. Whereas the sanctity and legitimacy of alternative dispute resolution rests, at least in part, on the independence and impartiality of its decision makers, many practitioners have come to view this aspect of international arbitration as a headache, even a migraine. Those practising in the field as counsel may find that such challenges have become nothing more than bad faith attempts to invalidate unfavourable results, while those acting as arbitrators resent the scrutiny of their current agendas and past affairs, professional and otherwise.

The Statement of Independence Required for ICC Arbitrations

The ICC, for one, issued a new "Statement of Acceptance, Availability and Independence" in August 2009 which dramatically broadened - or at least explicitly specified - the nature and amount of information prospective arbitrators must disclose. In particular, prospective arbitrators are asked to relate "any past or present relationship, direct or indirect, between [them] and any of the parties, their related entities or their lawyers or other representatives, whether financial, professional or of any other kind."8 The form also states that "[a]ny doubt must be resolved in favour of disclosure. Any disclosure should be complete and...

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