New Cross-Border Standards of Conduct for Arbitrators in International Arbitration

The paper deals with topical issues of improving the regulation at the international level of the rules concerning the conduct of arbitrators in international commercial and investment arbitration. Two new documents are highlighted: the Code of Conduct for Arbitrators in the Settlement of International Investment Disputes, prepared by the working group of the United Nations Commission on International Trade Law (UNCITRAL), and the 2024 edition of the guidelines of the International Bar Association (IBA) regarding conflicts of interest in international arbitration. The Code of Conduct for Arbitrators is applied in the framework of International Investment Dispute (IID) proceedings, but may be applied in the framework of proceedings in any other dispute by agreement of the parties to the dispute. Along with the requirements for the independence and impartiality of arbitrators, the Code introduces restrictions on the simultaneous performance of several functions, as well as establishes obligations to exercise diligence, conduct proceedings in good faith and competently, not delegate their decision-making responsibilities, maintain the confidentiality of proceedings; the requirement for the reasonableness of arbitrators’ fees, as well as provisions governing the role of tribunal assistants. The IBA Guidelines on Conflicts of Interest in International Arbitration are the most popular source of «soft law» among the sets of rules of international origin governing the impartiality and independence of arbitrators. It is often used in arbitration and judicial proceedings in various legal systems when considering issues related to the assumption of the functions of arbitrators, their appointments and challenges. The novelties introduced into this Manual, taking into account the 10-year practice of applying the previous edition, expand the list of circumstances to be disclosed, clarify a number of statements.

1. Bondy Ch, Khoury L. A New Code of Conduct for Arbitrators May Soon Be Available to Parties in Investor-State Disputes — But No Ban on Double-Hatting. Available from: https://www.steptoe.com/en/news-publications/global-trade-and-investment-law-blog/a-new-code-of-conduct-for-arbitrators-may-soon-be-available-to-partiesin-investor-state-disputesbut-no-ban-on-double-hatting.html.

2. Botyuk Yu. Undisclosed appointments as a possibility of bias. The Supreme Court of Great Britain explained the grounds for the dismissal of the arbitrator. Advokatskaya gazeta. 11.01.2021. Available from: https://www.advgazeta.ru/mneniya/neraskrytye-naznacheniya-kak-vozmozhnost-predvzyatosti/. (In Russ.).

3. Carter JH, Pierce JVH. IBA Guidelines on Conflicts of Interest in International Arbitration. New York Law Journal. 2014. Nov. 17. Available from: https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/2014-iba-guidelines-on-conflicts-of-interest-in-international-arbitration.pdf.

4. Khvaley V. IBA Guidelines on Party Representation in International Arbitration: To agree or not to agree. Arbitration.ru. 2020;8(22):72-82. (In Russ.).

5. Savranskiy MYu. Independence and impartiality of arbitrators: New international standards. Vestnik mezhdunarodnogo kommercheskogo arbitrazha [International Соmmercial Arbitration Review]. 2016;2(13):109-119. (In Russ.).

6. Savransky MYu, Mikshis DV. Review of the revised IBA Rules on the Taking of Evidence in International Arbitration (2020 revision). Treteysiy sud [Arbitration]. 2022;2/3:106-117. (In Russ.).

7. Sippel H. New IBA Guidelines on Conflicts of Interest in International Arbitration — what does this mean for Malaysia? Available from: https://www.skrine.com/insights/alerts/march-2024/new-iba-guidelines-on-conflictsof-interest-in-int.

8. Svetushkin S. Market overview of technological solutions for automation of conflict of interest detection. Arbitration.ru. 2020;8(22):109-110. (In Russ.).

9. Vanyukova EM. Independence and impartiality of arbitrators in international commercial arbitration. Vestnik mezhdunarodnogo kommercheskogo arbitrazha. 2014;2:2-84. (In Russ.).

10. Zykin IS. Impartiality and independence of arbitrators: New regulation. Kommercheskiy arbitrazh [Commercial Arbitration]. 2021;2:151-165. (In Russ.).