New guidelines have been drawn up by the International Bar Assoc-iation to deal with mounting concerns over arbitrators’ independence.
The guidelines, currently only in draft, suggest when arbitrators should withdraw from cases because of potential conflicts of interest.
Four grades of conflict have been identified. If an arbitrator is deemed to be in the ‘non-waivable’ red list, then they must withdraw from the case. This would be the case if the arbitrator legally represents a party in the arbitration, is a director of a company owned by one of the parties, or has a financial interest in the outcome.
A ‘waivable red list’ covers less serious areas, such as the arbitrator holding shares in a company owned by a party, or if a member of the arbitrator’s family has a close relationship with a third party in the case. Arbitrators on this list can take part with consent from all parties.
Arbitrators on the orange list, which urges caution but does not immediately ban an arbitrator, either has done, or is currently providing services to one of the parties, or there is some relationship between the arbitrator and a party.
On the green list, which allows participation, the arbitrator has given legal opinions in an unrelated forum to a party involved in the arbitration; the arbitrator’s firm has acted against one of the parties; or a firm in association with the arbitrator’s firm provides services to a party.