News
2001

Conflicts of interest from an ICC perspective

Arbitrators have a duty to meet certain standards of independence. This may raise the question of a potential conflict of interest. Recognizing such conflicts as a concern to arbitrators and parties, the Swiss Arbitration Association (ASA) devoted a one-day conference to the subject on 26 January 2001.

The conference was addressed by arbitration specialists from various countries, who described the standards set in their respective jurisdictions. Anne-Marie Whitesell brought an international viewpoint by presenting ICC's approach to the question.

The Deputy Secretary General of the ICC International Court of Arbitration described how in practice the Court and its Secretariat respond to the requirement laid down in Article 7 of the ICC Rules of Arbitration that an arbitrator must be independent of the parties involved in the arbitration. She pointed out the importance of disclosure in assessing independence.

ICC arbitration has an instrument specifically designed for this purpose - the Statement of Independence. When accepting office, arbitrators are required to sign this document and indicate any facts or circumstances likely to call into question their independence in the eyes of any of the parties.

Disclosure is to everyone's advantage. Not only does it help transparency and encourage confidence from the outset, but also avoids the risk of complications at later stages of the proceedings, if previously undisclosed facts come to light.

The effectiveness of the ICC approach to independence is shown by the fact that, in relation to the number of active cases (1036 as of 31 December 2000) and arbitrators appointed (812 in 2000), challenges are relatively uncommon - 33 in 2000, only 3 of which were accepted by the Court.

Ms Whitesell concluded that experience seems to show that ICC has been able to find a workable balance between respect for the parties' right to choose their arbitrators and the need to verify the independence of such arbitrators.

The conference proceedings, including Ms Whitesell's address, are to be published by ASA later in the year. For further information, please refer directly to ASA at: http://www.arbitration-ch.org