Conflicts of interest

Artificial Intelligence, Confidentiality, Conflicts of interest, Due process, Ethics, Illegally obtained evidence, Privilege, SIAC, SIAC Symposium, SIAC Symposium 2024, Singapore International Arbitration Centre, Southeast Asia, Technology

(Shearn Delamore & Co)/ /Leave a comment
YSIAC

Following the morning session of the SIAC Symposium 2024, which explored issues including the challenges posed by artificial intelligence (“AI”), climate change, and trade disruption (see Part 1), the afternoon session consisted of three plenary panel discussions that delved into the core issues shaping the future of arbitration. These pivotal topics comprised: the ethical considerations guiding…

Arbitrator Challenges, Brazil, Brazilian Arbitration Act, Brazilian Superior Court of Justice, Conflicts of interest, Duty to Disclose

(Demarest Advogados)/ /Leave a comment

On 18 June 2024, the Brazilian Superior Court of Justice issued an important decision, which it clearly established the distinction between the breach of the duty of disclosure and the loss of impartiality or independence of arbitrators. Among other arguments, there was the claim of a violation of the duty of disclosure, capable of generating…

Appointment of arbitrators, Conflicts of interest, Disclosure, IBA, IBA Guidelines on Conflicts of Interest

, (Cleary Gottlieb Steen & Hamilton LLP)/ /Leave a comment

In February 2024, the Arbitration Committee of the International Bar Association (“IBA”) released a revised version of the IBA Guidelines on Conflicts of Interest in International Arbitration (the “2024 IBA Guidelines” or the “Revised Guidelines”). First published in 2004 (the “2004 IBA Guidelines”) and then revised in 2014 (the “2014 IBA Guidelines”) (collectively, the “IBA…

Canada, Conflicts of interest, Duty to Disclose, Impartiality, Independence

(Omni Bridgeway)/ /Leave a comment

How strong a scent of a conflict will a court tolerate before setting aside an international commercial arbitration award on procedural grounds? In Aroma Franchise Company Inc. et al v. Aroma Espresso Bar Canada Inc. et al, the Ontario Superior Court of Justice set aside a $10 million award as a result of an undisclosed…

Arbitrators, Conflicts of interest, Corruption, Decision Making, IBA Guidelines on Conflicts of Interest, ICSID, In House Counsel, Independence and Impartiality, Institutional Arbitration, International arbitration, ISDS, Law Firms, Technology, UNCITRAL

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International arbitration is a constantly evolving field, shaped by global shifts, technological advancements, and changing expectations. On 31 August 2023 and 1 September 2023, the ICAL Alumni Association held the ICAL 20th Anniversary Conference entitled “Evolution or Revolution: Have We Mastered International Arbitration or Do We Need a New Blueprint for the Future?”. Carolyn Lamm’s (White &…

Arbitrator Bias, Arbitrator Challenges, Conflicts of interest, IBA Guidelines on Conflicts of Interest, Independence and Impartiality, Permanent Court of Arbitration

(Linklaters) and / /Leave a comment

On 10 October 2022, the Secretary-General of the Permanent Court of Arbitration (“PCA”) accepted a challenge brought by Venezuela against the appointment of the Claimant’s appointee, Dr. Wolfgang Peter, in an investor state arbitration (PCA Case No. 2022-03) instituted by German Claimant, Lufthansa (“Challenge Decision”). The Challenge Decision is the latest in the series of…

Arbitration Act, Arbitrator Challenges, Arbitrator Selection, Brazil, Brazilian Arbitration Act, Conflicts of interest, Debate, Disclosure, double hatting, Independence and Impartiality, judicial reform, regulation

(FCDG - Ferro, Castro Neves, Daltro & Gomide Advogados) and (University of Cambridge)/ /1 Comment

The 1996 Brazilian Arbitration Act (the “BAA”), which subjects domestic and international arbitrations to the same set of rules, has been modified only once through the 2015 amendment (the “2015 Amendment”). On July 6, 2022, Brazilian party leaders signed a Motion of Urgency to bypass the standard legislative process – which usually comprises public consultations…

Canada, Conflicts of interest, Counsel, Ethics, NAFTA

(Bocconi University) and (Association ARBITRI)/ /2 Comments

Not so long ago, as a lawyer you started your career at the same firm from which you would later retire. Today, the opposite is true. Ambitious young lawyers and sometimes even entire practice groups move to new firms. Counsel switch between in-house and law firm positions, between public and private employers, and occasionally between…

Code of Conduct, Conflicts of interest, Disclosure, double hatting, ICSID, Independence and Impartiality, Institutional Rules, Investment Arbitration

(Chaffetz Lindsey LLP) and (Holland & Knight LLP)/ /Leave a comment

The New York International Arbitration Center’s (“NYIAC”) annual Grand Central Forum took place on 13 July 2022. The event coincided with the 55th session of the United Nations Commission on International Trade Law (“UNCITRAL”) held in New York which, among other topics, focused on the recent fourth draft of the joint ICSID-UNCITRAL Code of Conduct…

2021 in Review, Arbitration Institutions and Rules, Argentina, Brazil, Colombia, Conflicts of interest, Ecuador, Enforcement, Latin America

(Herbert Smith Freehills)/ /Leave a comment

In 2021, Latin American countries continued to struggle with the adverse effects of the COVID-19 pandemic.  Accordingly, legislative and jurisprudential developments on arbitration-related issues were also affected given that the governments were focused on reactivating local economies, vaccinating their citizens, and launching tax and labor reforms.  In addition, presidential elections also marked political shifts for…

Conflicts of interest, Law Firms, Legal Practice, United States

(Arizona State University, Sandra Day O'Connor College of Law) and (University of Iowa College of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

For years, Australia and the U.K. have been the pioneering jurisdictions regarding ownership of law firms. Now, there’s a new kid on the block.  Recent developments in a few U.S. states, predominantly Arizona, and a new approach by the American Bar Association (ABA) signal a broad reexamination of the long-entrenched prohibition on non-lawyer participation (ownership…

Arbitration Institutions and Rules, Conflicts of interest, Russia

, (Russian Arbitration Center)/ /Leave a comment

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. The…

Conflicts of interest, Disclosure, Experts

(Addleshaw Goddard LLP) and (Freshfields Bruckhaus Deringer LLP)/ /Leave a comment
Jeantet

Arbitration proceedings most often involve complex disputes, where technical issues require specific technical, scientific, legal or financial expertise, leading parties to appoint one or more experts to support their position and assist the arbitral tribunal. The 2018 LCIA Note on Experts in International Arbitration reported that, out of some 300 new arbitrations registered each year…

Annulment, Brazil, Conflicts of interest, Duty to Disclose, Multiple appointments

(Souto, Correa, Cesa, Lummertz & Amaral Advogados)/ /Leave a comment

On 11 August 2020, the Court of Appeals of the state of São Paulo, Brazil, annulled an arbitral award1)1ª Câmara Reservada de Direito Empresarial do Tribunal de Justiça de São Paulo. Apelação Cível no. 1056400-47.2019.8.26.0100 [Appeal no. 1056400-47.2019.8.26.0100]. on the grounds that the chair of the arbitral tribunal had failed to timely disclose his appointment…

Annulment, Appointment of arbitrators, Conflicts of interest

(Galvez Pascual SLP) and , / /Leave a comment

In a recent decision, in Eiser Infrastructure Limited and Energia Solar Luxemburg S.À.R.L. v Kingdom of Spain (ICSID Case No. ARB/13/36), an International Centre for Settlement of Investment Disputes (ICSID) ad-hoc committee decided to annul an award in its entirety. The reason being a conflict of interest. For the first time in ICSID’s history, an…

Code of Conduct, Conflicts of interest, Disclosure, ICSID, Independence and Impartiality, ISDS, UNCITRAL, Working Group III

(Richmond School of Law)/ /1 Comment
Institute for Transnational Arbitration (ITA)

On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…

Conflicts of interest, COVID-19, Ethics, IBA Guidelines on Party Representation, LCIA Guidelines for Parties' Legal Representatives, LCIA Rules, Vis Moot, Willem C. Vis Moot

(University of Oxford) and (Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

For decades, like clockwork, the Willem C. Vis International Commercial Arbitration Moot (‘Vis Moot’) and its sister competition, Vis East Moot, have brought together students, academics, practitioners, and arbitrators to consider emerging and important substantive topics in international arbitration and international sales law. Many of us honed our passion for these fields as student participants in the Vis…

Arbitrator Challenges, Conflicts of interest, Egypt

(Shehata & Partners, Maastricht University)/ /1 Comment

Introduction An ongoing discussion in the world of international arbitration concerns the conflict of interest of arbitrators and how such issue should be addressed. In this regard, the Egyptian Court of Cassation has very recently enriched this discussion by evincing its perspective on this matter, particularly, with respect to the standard of impartiality and independence…

Arbitration, arbitrators’ conduct, Code of best practices, Conflicts of interest, Diversity, Duty to Disclose, Spain

(Mihaela Maravela Law Office) and (GIN Platform Blockchain Infrastructure)/ /1 Comment

In June 2019, the Spanish Arbitration Club (“CEA”) launched a new Code of Best Practices in Arbitration (the “Code”). This post briefly describes the scope of the Code and provides insights on the specific best practices proposed by CEA. The initiative is commendable, as it reflects the CEA community experience and tackles hot topics in…

Bias, Conflicts of interest, Guerrilla Tactics, IBA Guidelines on Conflicts of Interest, Third party funding

(Stockholm University)/ /Leave a comment

Some rules, although made to protect the integrity of an arbitration procedure, open up opportunities for bad faith actors to utilize “legislative” shortcomings. Too often these actors engage in guerilla tactics. Soft law has developed to remedy these grievances. For example, the IBA Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines) seek to…

Arbitration institution, Arbitrator Challenges, Conflicts of interest

(ILS Law College)/ /2 Comments

Arbitrator neutrality remains an imperative prerequisite in international commercial arbitration. After all, the primary advantage of arbitration is that parties have the ability to choose their own decision-makers.  The issue of advance waivers typically arises at the time of appointment, when the arbitrator reserves the right to continue as an arbitrator despite the occurrence of…

Conflicts of interest, IBA Guidelines on Conflicts of Interest, Independence and Impartiality, International arbitration, Social media, Social media

/ /2 Comments

Introduction Currently, social network trends are focused on consumer markets, such as the fashion or food industry. The uninterrupted use of smart phones, computers, tablets, Ipod´s, etc. with unlimited internet connection has resulted in us being mere dependent beings on these devices. Social networks are everyday forms of social interaction, defined as a dynamic exchange…

Annulment, Bias, Conflicts of interest, Disclosure, Duty to investigate, England, IBA Guidelines on Conflicts of Interest, Impartiality, Independence, Japan, Non-disclosure, Set aside an arbitral award, Set aside an international arbitral award, Switzerland

(City-Yuwa Partners) and (Independent Attorney at Law)/ /Leave a comment

On December 12, 2017, the Supreme Court of Japan rendered its first decision on the setting aside of an arbitral award based on an arbitrator’s failure to disclose facts allegedly constituting a conflict of interest, reasoning that, in order for the award to be set aside on this ground, it is necessary that the arbitrator…

Conflicts of interest, Third party funding

(Clasen, Caribé & Casado Filho Sociedade de Advogados)/ /2 Comments

Arbitration, especially in its international perspective, has experienced such a tremendous growth in the past few decades that it has now become a victim of its own success. Current debates are centered on the prohibitive costs, the difficulty in finding high-level arbitrators and conflicts of interests often exclusive to relatively diminished groups, demonstrating that themes…