• The advocation of an arbitrator’s position on the case or the subject matter of the arbitration on social media, including professional networking platforms, is now classified under the Orange List. An arbitrator may now be required to disclose the potential conflict of interest to parties.^[4]
• If an arbitrator is obligated to disclose but is constrained by professional secrecy rules or other rules of practice or professional conduct, and is prevented from making the required disclosure, the arbitrator should not accept the appointment, or should resign (if already appointed).^[5]
• A positive obligation is now imposed on appointing parties to conduct a reasonable inquiry on the potential arbitrator to ascertain any facts or circumstances that could constitute a potential conflict of interest. A failure to raise a timely challenge may result in a waiver.^[6]
• Failure to disclose does not automatically give rise to a conflict of interest or disqualification of the arbitrator.^[7]

Conclusion

The updates in the Revised Guidelines aptly reflect the ongoing developments in the global arbitration landscape, offering clearer guidance on potential conflicts of interest for arbitrators. The Revised Guidelines are expected to remain a reliable source of soft law, providing valuable guidance for increasing efficiency in arbitration proceedings.

The IBA has also published a comparative document visualising amendments across the 2014 and 2024 versions of the Guidelines. This may be viewed here.

If you have any queries, please contact Associate, Stephanie Lim Shu Juin (lsj@lh-ag.com) or her team Partner, Lim Chee Yong (lhy@lh-ag.com).

[REFERENCES]

[1] Albeit a form of soft law instrument, the IBA Guidelines has been widely accepted by the international arbitration community.

[2] General Standard 6(a).

[3] Items 3.2.9 and 3.2.10 of the Orange List.

[4] Item 3.4.2 of the Orange List.

[5] General Standard 3(e).

[6] General Standard 4(a).

[7] General Standard 3(g).