Earlier this month, the ICC International Court of Arbitration has adopted a Guidance Note for the disclosure of conflicts by arbitrators. I had the priviledge to hear the President of the Court, Alexis Mourre, discuss the new policy at a meeting with the ICC’s German Group shortly after the note had been adopted by the Bureau of the Court on February 12, 2016.
Alexis Mourre sees this note as a key element in the ICC‘s strategy to enhance transparency of the arbitration process. As part of that strategy, the ICC has already started to publish the names of arbitrators sitting in ICC cases on its website.
I guess the key take-away from this meeting for prospective arbitrators is: If in doubt, disclose. The ICC court will not hold disclosures per se against you. As the note itself states: „A disclosure does not imply the existence of a conflict. On the contrary, arbitrators who make disclosures consider themselves to be impartial and independent, notwithstanding the disclosed facts, or else they would decline to serve.“ On the other hand, Alexis Mourre confirmed that a failure to disclosure, while not in itself a ground for disqualification, will be weighted by the court when deciding upon a challenge.
Technically, the note is integrated into the ICC Note to Parties and Arbitral Tribunals. It is binding upon the arbitrators, as they sign up to it when they accept the appointment. Here is the note:
„The parties have a legitimate interest in being fully informed of all facts or circumstances that may be relevant in their view in order to be satisfied that an arbitrator or prospective arbitrator is and remains independent and impartial or, if they so wish, to explore the matter further and/or take the initiatives contemplated by the Rules.
An arbitrator or prospective arbitrator must therefore disclose in his or her Statement, at the time of his or her appointment and as the arbitration is ongoing, any circumstance that might be of such a nature as to call into question his or her independence in the eyes of any of the parties or give rise to reasonable doubts as to his or her impartiality. Any doubt must be resolved in favour of disclosure.
A disclosure does not imply the existence of a conflict. On the contrary, arbitrators who make disclosures consider themselves to be impartial and independent, notwithstanding the disclosed facts, or else they would decline to serve. In the event of an objection or a challenge, it is for the Court to assess whether the matter disclosed is an impediment to service as arbitrator. Although failure to disclose is not in itself a ground for disqualification, it will however be considered by the Court in assessing whether an objection to confirmation or a challenge is well founded.
Each arbitrator or prospective arbitrator must assess what circumstances, if any, are such as to call into question his or her independence in the eyes of the parties or give rise to reasonable doubts as to his or her impartiality. In making such assessment, an arbitrator or prospective arbitrator should consider all potentially relevant circumstances, including but not limited to the following:
- The arbitrator or prospective arbitrator or his or her law firm represents or advises, or has represented or advised, one of the parties or one of its affiliates.
- The arbitrator or prospective arbitrator or his or her law firm acts or has acted against one of the parties or one of its affiliates.
- The arbitrator or prospective arbitrator or his or her law firm has a business relationship with one of the parties or one of its affiliates, or a personal interest of any nature in the outcome of the dispute.
- The arbitrator or prospective arbitrator or his or her law firm acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise.
- The arbitrator or prospective arbitrator or his or her law firm is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality.
- The arbitrator or prospective arbitrator has a professional or close personal relationship with counsel to one of the parties or the counsel’s law firm.
- The arbitrator or prospective arbitrator acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates.
- The arbitrator or prospective arbitrator acts or has acted as arbitrator in a related case.
- The arbitrator or prospective arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel’s law firm.
In assessing whether a disclosure should be made, an arbitrator or prospective arbitrator should consider relationships with non-parties having an interest in the outcome of the arbitration. The Secretariat may in this respect assist prospective arbitrators by identifying relevant entities and individuals in the arbitration. Such an indication does not release an arbitrator or prospective arbitrator from his or her duty to disclose with respect to other relevant entities and individuals he or she may be aware of. In case of doubt with respect to such an indication made by the Secretariat, an arbitrator or prospective arbitrator is encouraged to consult the Secretariat.
The duty to disclose is of an ongoing nature and it therefore applies throughout the duration of the arbitration.“