CRS615 v1

Arbitral Institutions’ Conflicts of Interest. (2021, July 28). Kluwer Arbitration Blog. https://arbitrationblog.kluwerarbitration.com/2021/07/28/arbitral-institutions-conflicts-of-interest/
Conflicts of interest between parties and arbitrators are common in arbitration proceedings. However, the academic community has not yet examined whether arbitral institutions may also run into conflicts of interest. This post will deal with this question and also examine measures that can mitigate any such risks of conflicts of interest for arbitral institutions.

Greineder, D. (2020, October 9). Too Close For Comfort: Arbitrator Independence After Eiser. Kluwer Arbitration Blog. https://arbitrationblog.kluwerarbitration.com/2020/10/09/too-close-for-comfort-arbitrator-independence-after-eiser/
In its decision of 11 June 2020, an ICSID Annulment Committee annulled an award in Eiser and Energia Solar Luxembourg v. Spain, ICSID Case No. ARB/13/36. It did so on the grounds that the arbitrator appointed by the investors, Stanimir Alexandrov, and his former law firm, Sidley Austin, had worked so closely and frequently with the claimant investors’ damages expert Carlos Lapuerta and his firm, the Brattle Group, that a reasonable outsider “would find a manifest appearance of bias” on the facts (at para. 229).

Nair, U. B. (2023, March 29). The IBA Guidelines on Conflicts of Interest: Time for a Relook? Kluwer Arbitration Blog. https://arbitrationblog.kluwerarbitration.com/2023/03/29/the-iba-guidelines-on-conflicts-of-interest-time-for-a-relook/
Independence and impartiality of an arbitral tribunal has been fundamental to arbitration and was recently re-emphasized by major decisions in common law jurisdictions including by the UK (Halliburton v. Chubb) and Indian (Perkins Eastman v. HSCC) Supreme Courts. However, independence and impartiality in arbitration is not a common law question and is deeper seated and all-pervasive in the general system of law.

The What, Why, and How of Arbitrator Disclosures | ADR.ORG. (n.d.). Www.adr.org. Retrieved March 18, 2024, from https://www.adr.org/blog/the-what-why-and-how-of-arbitrator-disclosures
Any doubt as to whether an arbitrator should make a disclosure should be resolved in favor of disclosure. The arbitrator should not judge the significance of the potential conflict or contact but rather make the disclosure and let the parties determine its significance. As a guiding principle: if a relationship or interest crosses the arbitrator’s mind, the arbitrator should disclose it.

Fabri, H. R. (2019). Conflicts of Interests: Navigating in the Fog. AJIL Unbound, 113, 307–311. https://doi.org/10.1017/aju.2019.43
The issue of conflicts of interests has for a long time only been mentioned in passing in relation to recusals of international judges or arbitrators. It now attracts increasing attention, which has two facets. The first one is of normalcy: the exponential growth of international adjudication over the last three decades has turned issues that were previously rather marginal—with few rules, mostly self-regulation, and little institutionalization—into systemic issues. The other dimension is pathological: the feeling that the issue is not properly addressed contributes to the climate of mistrust around international adjudication.