Conflicts of interest in arbitration—applicable principles
Produced in partnership with Marie-Claire O'Kane and Richard Liddell of 4 New Square and Peter Halprin and Stephen Wah of Anderson Kill
Conflicts of interest in arbitration—applicable principles

The following Arbitration guidance note Produced in partnership with Marie-Claire O'Kane and Richard Liddell of 4 New Square and Peter Halprin and Stephen Wah of Anderson Kill provides comprehensive and up to date legal information covering:

  • Conflicts of interest in arbitration—applicable principles
  • What are the general principles of fairness, impartiality, and independence?
  • How are an arbitrator's impartiality and independence assessed?
  • What guidance is available for assessing and dealing with potential conflicts of interest?
  • What guidance is available for assessing and dealing with potential counsel-arbitrator conflicts of interest in international arbitration?
  • What institutional guidance is available for assessing and dealing with conflicts of interest in international arbitration?

This Practice Note should be read in conjunction with Practice Note: Conflicts of interest in arbitration—challenges to arbitral appointments.

What are the general principles of fairness, impartiality, and independence?

A cornerstone of procedural fairness is the impartiality and independence of the decision-maker and this is as fundamental an ingredient of arbitration as it is of litigation. It is reflected both in domestic arbitration laws (see, for example, the general duty of the arbitrator in section 33 of the Arbitration Act 1996 (AA 1996) to act fairly and impartially) and in international institutional rules, eg the London Court of International Arbitration (LCIA) Rules, Article 5.3 (LCIA, Art 5.3).

In general, commentators have explained that independence refers to the requirement that there be no actual or past dependent relationship between the parties and the arbitrators which may or at least appear to affect the arbitrator’s freedom of judgment. Impartiality, generally, refers to the requirement that arbitrators neither favour one party nor are predisposed with regard to the disputed issue(s). According to Julian Lew, ‘[w]hile impartiality is needed to ensure that justice is done, independence is needed to ensure that justice is seen to be done’.

How are an arbitrator's impartiality and independence assessed?

Most international arbitration rules expressly require arbitrators to be and remain 'impartial and independent of the parties', eg the