4. Waiver of potential conflict of interest by parties
Under General Standard 4, a party is deemed to have waived potential conflict of interest if it does not raise an objection against an arbitrator within 30 days of the receipt of the arbitrator’s disclosure, or if the party learns of facts or circumstances which could potentially be conflicts of interests. Under the 2024 Guidelines, a party shall be deemed to have learned of such fact or circumstance that could have been known after a reasonable inquiry at the start or during the proceedings.
5. Scope of the guidelines
The 2024 Guidelines do not make any change to the scope of the guidelines which are relevant for tribunal chairs, sole arbitrators, co-arbitrators, arbitral or administrative secretaries and assistants.
6. Relationships of arbitrators with parties
General Standard 6 sets out guidelines when an arbitrator would be considered to bear the identity of certain persons or entities, which may warrant disclosure or potential conflict. The 2014 Guidelines referred to arbitrators bearing the identity of his/her law firm. However, the 2024 Guidelines consider the changing dynamics in corporate and sovereign structures, which may potentially impact independence and impartiality of arbitrators and introduce the following changes:
a. The 2024 Guidelines expand to include relationships of parties with the arbitrator’s “law firm or employer” and not just “law firm”. This may include arbitrators who are lawyers at law firms and/or employed by a company or other organisations. Corresponding changes have been made to the Lists. For example, this would now extend to in-house counsel in companies.
b. The law firm’s or employer’s organisational structure and mode of practice would be relevant.
c. The 2024 Guidelines also contemplate that a party may have a controlling influence over “a natural person” and not just a legal entity. This could be controlling influence, economic interests or indemnification obligations. This could be in case of parent-subsidiary companies or promoter having controlling influence over their companies.
d. In case of states or state-entities who are parties to the arbitration, the arbitrator should consider disclosing his relationships with entities such as regional or local authorities, autonomous agencies, or state-owned entities, irrespective of whether they are part of the state or have private status, and vice-versa.
7. Duty of parties to disclose
The 2024 Guidelines include additional information required to be disclosed by parties, which includes informing of: (a) a person or entity over which a party has a controlling influence, (b) any other person or entity an arbitrator should consider while making disclosures in accordance with General Standard 3. Parties’ duty to disclose relationships also applies in case of any controlling influence, direct economic interest or duty to indemnify over any legal or natural person.
Source: Barandbench
