Arbitrators: Disclosure and Conflicts of Interest
摘要
This chapter focuses on the arbitrator’s independence and impartiality and conflicts of interest issues in relation to third-party funding. This chapter first discusses the mandatory disclosure of third-party funding in arbitral proceedings. This question relates to the possibility for the arbitrator to be aware of the identity of the funder in order to examine his or her own conflicts of interest. By examining the various legal sources in international arbitration, this chapter finds that there has been a trend towards the mandatory disclosure of the presence and identity of the funder but two main issues exist in introducing the disclosure model of third-party funding in international arbitration. One is the definition of a ‘third-party funder’ and ‘third-party funding’, and the other concerns the scope of any disclosure. Bearing these two issues in mind, this chapter provides corresponding recommendations. This chapter has also examined ethical norms in relation to the arbitrators’ disclosure and disqualification in the context of third-party funding. It finds that difficulties exist for arbitrators and arbitral institutions with respect to the application of the inconsistent and abstract disclosure and disqualification standards to deciding whether to make any disclosure and whether any potential conflicts of interest exist between an arbitrator and a funder. Based on the analysis focusing on the 2014 IBA Conflicts of Interest Guidelines together with the 2024 update, this chapter highlights the ambiguities that exist in relation to the funding-related guidelines therein and provides corresponding suggestions for revision. Moreover, in the context of the trend towards increased transparency in the selection of arbitrators in international arbitration, this chapter proposes professional guidelines for arbitrators in relation to the disclosure and investigation of potential conflicts of interest by arbitrators and the factors that the decision-makers in arbitrator challenges may consider in assessing whether a conflict of interest exists between an arbitrator and a funder.