IBA Guidelines 2024

Since their introduction in 2004, the IBA Guidelines have become widely recognised among the international arbitration community as a solid soft law instrument reflecting standards expected to apply to impartiality and independence of arbitrators, as well as disclosures in specific circumstances. 

The IBA Guidelines were first revised in 2014. A decade later, the IBA Guidelines have been further revised, following a survey held among arbitration professionals and stakeholders. As the foreword to the 2024 IBA Guidelines observes, making amendments to the Guidelines (which are intended to inform the conduct of arbitrators internationally) is a “sensitive exercise”. That is especially so given the wide application of the Guidelines, which cover general commercial arbitration, to more specialised schemes including maritime and commodities disputes.

Since 2014, there has been considerable debate within the international arbitration community on the topics of arbitrator impartiality, bias, and the scope of an arbitrator’s duty of disclosure. Of particular note is the UK Supreme Court’s Judgment in Halliburton Co -v- Chubb Bermuda Insurance Ltd [2021] 1 Lloyd’s Rep, which addressed the importance of arbitrator impartiality in London-seated arbitrations. The judgment explored the circumstances in which an arbitrator may appear to be biased and the scope of an arbitrator’s duty of disclosure in this context. Whilst doing so, the Supreme Court notably made reference to the ‘best practice’ standard set out in the IBA Guidelines (albeit whilst noting the non-binding nature of the guidance). 

The influence from the Halliburton -v- Chubb judgment permeates throughout the latest revisions to the IBA Guidelines: the primary amendments to the Guidelines relate to the importance of arbitrator impartiality and the scope of an arbitrator’s duty of disclosure. Whilst the latest revisions are somewhat modest in comparison to the 2014 revisions, the IBA Committee’s most recent fine-tuning nevertheless introduces important, necessary and modernising amendments which align the Guidelines with the recent case law and the broader developments in arbitral practices worldwide. 

Summary of the 2024 revisions

The IBA has retained the two-part structure of the IBA Guidelines:

• Part One – This covers the overarching principles concerning impartiality, independence and disclosure. 
• Part Two – This contains lists of specific scenarios found in international arbitration, which are categorised in a ‘Red’, ‘Orange’ and ‘Green’ traffic-light system.

We address the key revisions made to each part of the IBA Guidelines below.

PART ONE – The General Standards

General Standard 1 (General Principle of Impartiality and Independence)

The IBA has confirmed that the obligation of impartiality and independence does not extend to the time period during which an award may be challenged before any relevant courts or other bodies. This amendment clarifies that the obligation of impartiality and independence ceases once the tribunal has made its final award. Albeit the obligation does extend to the time permitted for any correction to the award. 

General Standard 2 (Conflicts of Interest)

The issue of when it is appropriate for an arbitrator to decline an appointment (or refuse to continue to act) on the basis of a potential conflict of interest is an issue which has been subject to significant recent debate. This issue is addressed by General Standard 2, as well as the relevant test for disqualification for lack of impartiality or independence.

By the 2024 revisions to General Standard 2, the IBA have confirmed that the test for disqualification is an objective, “reasonable third person test” (ie, would a reasonable third party, who is informed of the relevant facts, perceive a conflict which would raise doubts as to the arbitrator’s impartiality or independence.) This objective test is consistent with test for apparent bias confirmed by the Supreme Court in test in Halliburton -v- Chubb.

The amendment clarifies that when a justifiable doubt exists (examples of which are described in the Non-Waivable Red List), an arbitrator should decline the appointment in question or refuse to act. 

General Standard 3 (The arbitrator’s duty to disclose)

The question as to whether an objective or subjective test should be applied when considering whether an arbitrator should make a disclosure, is one which has been the subject of considerable debate since 2014.

The IBA has provided welcome confirmation that an arbitrator’s duty to disclose is subject to a subjective test which considers whether the certain facts or circumstances “give rise […] in the eyes of the parties” to doubt as to the arbitrator’s impartiality or independence. This requirement for a careful assessment of the factual matrix is notably consistent with the test for “apparent bias” introduced by Lord Hodge in Halliburton -v- Chubb.

A new General Standard 3(e) has also been introduced, which advises arbitrators against accepting appointments, or resigning following an appointment if they believe disclosure is necessary, but the arbitrator is impeded by professional secrecy rules or other confidentiality obligations. 

There may of course be inconsistencies between the IBA Guidelines and other specialised schemes. For instance, in the context of Halliburton -v- Chubb, the London Maritime Arbitrators Association (the “LMAA”) explained that multiple appointments are relatively common under their procedures because they frequently arise out of the same incident. The IBA Guidelines anticipate and allow for this eventuality at the footnote at 3.1.3 which explains that in certain types of arbitration, such as maritime or commodities arbitration, arbitrators may be drawn from specialised pool of individuals or selected from a mandatory list. Parties active in those fields may be aware of a custom or practice for appointing parties frequently to appoint the same arbitrator in different cases. In that event, while disclosure of multiple appointments may still be desirable, the scope of disclosure and consequences may differ from the requirements in the Guidelines. 

General Standard 4 (Waiver)

This section has been updated to include a presumption of knowledge of any facts or circumstances that a party would have discovered upon a “reasonable enquiry”. This reiterates the responsibility of a party to conduct its own investigations in relation to potential conflicts of interests involving arbitrators (whether currently appointed or to be appointed in the future).

General Standard 6 (Relationships)

To account for the evolving structure of international legal practices, the IBA Guidelines now make a more general reference to the arbitrator’s employer (rather than simply a reference to a law firm). This revision clarifies that arbitrators represent not only their law firms, but also their employers. There is also now a provision which confirms that entities or individuals under a certain party’s “control”, represent that party. 

PART TWO – The Traffic Light System

No substantive changes were made to the ‘Red’ list (either in the ‘waivable’ or ‘non-waivable’ lists). The ‘Green’ list was similarly left largely untouched.

The most significant changes were to the ‘Orange’ list, which was expanded. Disclosure is now required where:

• The arbitrator currently serves, or has acted within the past three years, as an expert for one of the parties or appointed by counsel in unrelated matters (3.1.6 and 3.2.9)
• The arbitrator and another arbitrator are lawyers in the same law firm or have the same employer (3.2.1)
• The arbitrator has, within the past three years, been appointed to assist in mock-trials or hearing preparations on more than three occasions by the same counsel, or the same law firm (3.2.10)
• An arbitrator and counsel for one of the parties currently serve together as arbitrators in another arbitration (3.2.12)
• An arbitrator and their fellow arbitrator(s) currently serve together as arbitrators in another arbitration (3.2.13)
• The arbitrator is instructing an expert appearing in the arbitration proceedings for another matter where the arbitrator acts as counsel (3.3.6)
• The arbitrator has publicly advocated a position on the case, whether in a published paper or speech, through social media or on-line professional networking platforms, or otherwise (3.4.2)
• The arbitrator holds an executive or other decision-making position with the administering institution or appointing authority with respect to the dispute and in that position has participated in decisions with respect to the arbitration (3.4.3)

Conclusion 

The 2024 revisions to the IBA Guidelines strike the balance between modernising the guidance and retaining the principles at the core of the IBA Guidelines (of transparency, fairness and integrity in international arbitration). The revisions reflect the changes to arbitral practice since 2014 and are a reflection of the debates within the international arbitration community. 

The latest IBA Guidelines can be accessed here.