Arbitrators and potential arbitrators involved in international commercial and investment arbitration cases may face complex issues involving conflicts of interest. What sorts of past or present involvement with a party, or with one of its subsidiaries or a joint venture in which it participates, or with the law firms that are counsel in the arbitration, must be disclosed? How far back in time should one go in searching for potential conflicts? What basis does a party need to object to a disclosed connection? Are the parties free to waive any conflicts that exist, or are there some conflicts that are “non-waivable”? Are some types of relationships so routine that they need not be disclosed at all? Do the answers vary depending on the country where the arbitration will be held? Laws and arbitration rules speak in generalities, and would-be arbitrators search for more specific guidance.
In the United States, arbitrators look first to the American Arbitration Association-American Bar Association Code of Ethics for Arbitrators in Commercial Disputes,1 first promulgated jointly by those two organizations in 1977 and later amended in 2003. It offers advice in the form of a statement of general ethical principles (called “canons”), each accompanied by a number of elaborations of its application to some issues that typically arise in relation to the subject of the canon, such as disclosure. U.S. courts regularly cite the Code as useful in ruling on challenges to arbitral awards in which arbitrator disclosure or conduct is questioned.
