In August 2024, the International Institute for Conflict Prevention and Resolution published its Guidelines for Arbitrator Disclosure (the “CPR Guidelines”), aiming to provide arbitrators with practical guidance on preparing their disclosures to avoid potential conflicts of interest.
Purpose and Scope
As indicated in their preamble, the CPR Guidelines seek to facilitate the arbitrators’ disclosure process, thereby helping to ensure compliance with the applicable laws, rules and standards. However, unlike the IBA Guidelines on Conflicts of Interest in International Arbitration (the “IBA Guidelines”), they are not intended to determine whether an arbitrator has violated a duty to disclose.
The CPR Guidelines can apply to any arbitration proceedings (domestic or international, commercial or investment), including those conducted under the CPR’s various rules.
The Six Guidelines
The CPR Guidelines for Arbitrator Disclosure outline six key principles for arbitrators to follow when preparing their disclosures:
- Confirmation of Disclosure Requirements: Arbitrators should be familiar with and adhere to the applicable laws, rules and standards governing disclosure in their arbitration.
- Maintaining a Conflicts Database: Arbitrators should maintain a searchable database containing key details of their previous and pending arbitrations to facilitate conflict checks.
- Considerations for Arbitrators at Law Firms: Arbitrators at law firms should ensure their conflict checks cover interests and relationships of other firm members that may give rise to potential conflicts.
- Conflict Checks Beyond the Database: Arbitrators should consider interests and relationships not typically included in a database, such as personal interests and those involving family members.
- Drafting a Disclosure Statement: Arbitrators should provide a brief summary of potential conflicts revealed by their conflict check, as well as general disclosures about their background and limitations of their conflict check.
- Continuing Obligation of Disclosure: Arbitrators have an ongoing duty to disclose any potential conflicts of interest that arise or are discovered during the course of an arbitration.
While the CPR Guidelines do not introduce groundbreaking new concepts, they effectively consolidate and reiterate best practices that are widely recognized in the arbitration community. However, given the increasing use of technology in arbitration, the CPR Guidelines could provide more specific guidance on disclosure related to digital platforms, AI tools, or other technological aspects of the arbitration process.
CPR Guidelines vs IBA Guidelines
While the IBA Guidelines provide a detailed categorization of potential conflicts of interest (using a traffic-light system, i.e., red, orange, and green lists), the CPR Guidelines provide practical guidance on how arbitrators should implement disclosure procedures. Put simply, the CPR Guidelines focus more on the “how” rather than the “what” of conflict disclosure.
Conclusion
Although the CPR Guidelines largely reaffirm existing principles, they can serve as a useful reference tool for arbitrators to maintain transparency and uphold ethical standards in their practice. By focusing on the procedural aspects of disclosure, they also complement existing standards, such as the IBA Guidelines, ultimately promoting transparency and confidence in the arbitration process.