Paul Mitchard QC

Skadden Arps Slate Meagher & Flom

Independence and impartiality

International arbitral tribunals, sitting in Europe, are increasingly entrusted with significant and high-value commercial and public law disputes. In these, as in all arbitration cases, it is important that the highest level of ethical integrity is maintained, not only so that justice is seen to be done, but also, on a practical level, to minimise the risk of objection¹ at the instance of one of the parties or, occasionally, on the initiative of an arbitral institution.²

International arbitrators are expected to be 'impartial, independent, competent, diligent and discreet',³ but they also have other obligations with ethical overtones, including a duty to maintain confidentiality and not subsequently to accept conflicting appointments. This article focuses primarily upon the linked, and to some extent overlapping, concepts of neutrality, impartiality and independence, which are essential ethical obligations of an arbitrator and crucial to the performance of his task, and then also considers a number of continuing obligations to which less attention is generally paid.⁴

Most challenges by a party to an arbitrator are based on alleged, perceived or actual partiality and the issue of independence generally arises out of the relationship between an arbitrator and a party (or its counsel). In this context, independence, as defined by the English courts, connotes 'an absence of connection with either of the parties in the sense of an absence of any interest in, or of any present or prospective business or other connection with, one of the parties, which might lead the arbitrator to favour the party concerned.'⁵

Impartiality is defined rather by reference to the objectivity of the decision-maker and the absence of bias, and is an aspect of the wider duty to act fairly. An arbitrator may have a bias, either in favour of a party or in relation to the issues in dispute, which prevents him from making an objective determination of the issues that he has to resolve.⁶ English law tends to emphasise the need for impartiality rather than independence on the part of an arbitrator,⁷ the reason for which has been explained as follows:

It seems to us that lack of independence, unless it gives rise to justifiable doubts about the impartiality of the arbitrator, is of no significance.⁸

On the other hand, some arbitral institutions expressly require arbitrators to be independent. For example, article 7 of the ICC Rules refers exclusively to independence.⁹ The practical rationale for this approach has been expressed thus:

[I]ndependence is a more objective notion. Independence is generally a function of prior or existing relationships that can be catalogued and verified, while impartiality is a state of mind, which it may be impossible for anyone but the arbitrator to check or to know when the arbitrator is being appointed.¹⁰

The IBA Guidelines, UNCITRAL Model Law and Arbitration Rules, as well as the rules of many arbitral institutions, expressly require both independence and impartiality. It has been observed that impartiality and independence are actually 'two sides of the same coin.'¹¹ In practice, little turns on fine distinctions between them and what matters is that both concepts describe a general expectation of the parties that their arbitral tribunal will be neutral as between the parties in performing its duties.

Consequences of a breach of the impartiality or independence obligation

An arbitrator's lack of impartiality or independence can result in his removal, if discovered before an award is rendered. Accordingly, a challenge can be brought based upon information uncovered after the commencement of the arbitration, or in respect of conduct occurring during the arbitration itself. While the ability to make a challenge during the course of an arbitration must be preserved as a matter of doing justice between the parties and ensuring the integrity of an arbitration, such a challenge is likely to disrupt the arbitral process.

Most rules and national arbitration laws go some way towards mitigating this problem by providing that a party waives its right to remove an arbitrator if it does not exercise such right within a limited time period after learning of the circumstances giving rise to the challenge.¹² However, if such circumstances genuinely do not come to light until after the arbitration has commenced then delay and expense in dealing with the challenge will generally be inevitable. Particularly in high-stakes cases, such challenges are not infrequent and offer scope for abuse where disruption to the arbitral process suits one of the parties.

Where an award has been made and evidence of impartiality or lack of independence can be shown then, assuming it is not precluded from pursuing objections by virtue of any delay, the losing party may rely on its newly-discovered evidence in order to challenge that award. In such a case the result may well be the reopening of the entire arbitration.

An arbitrator's connection with a party or its counsel

As noted above, the majority of challenges to an arbitrator arise out of an existing connection between that arbitrator and a party or its counsel. As an example of where the limits to this ground for objection may lie, a Swiss court has recently considered a request to set aside an award where an arbitrator and a party's counsel were members of the same professional association. Referring to the IBA Guidelines and article 180(1) of the Swiss Private International Law, the court ruled that such a relationship was not likely to give rise to an objective doubt with respect to the impartiality of the arbitral tribunal, although it observed that the outcome may have been different if there were regular cross-appointments between the members of the organisation. The court also noted that information about the common membership on the part of the arbitrator and the party's counsel, of the association, was publicly available on the arbitrator's webpage, and therefore, the claimant should have made its own enquiries and could have raised objections at the time of the appointment of the tribunal.¹³

In a landmark English decision, Laker Airways, the court held that the involvement in an arbitration of two barristers from the same chambers (as an arbitrator and counsel) did not create the appearance of bias and nor was there any actual bias. The judge observed that there was no conflict of interest because barristers were self-employed and did not share income. It was also noted that preventing barristers from appearing against, or in front of, one another in arbitrations would place severe limitations upon access to justice:

Especially in the context of specialist legal services, where it may be that only a handful of chambers practise within a particular specialty, it would mean that public choice of counsel would be drastically cut.¹⁴

When deciding on a challenge brought in similar circumstances, the LCIA Court observed that the claimant and its counsel were familiar with the organisation of barristers in England, and rejected the challenge.¹⁵ In France, a Court of Appeal similarly rejected a claim that the president of a tribunal had not been independent because he came from the same set of chambers as counsel for one of the parties.¹⁶ It has to be said though that this issue has been simmering for some time, particularly among lawyers in the United States, and it may be that courts in other jurisdictions may yet take a different view about the relationship between barristers in the same chambers.

What these decisions do show, however, is that a significant or inappropriately close connection between an arbitrator and one of the parties (or its counsel) is required in order to justify the removal of an arbitrator. Relationships with the arbitrator may be professional or personal and the current status and timing of the relationship will also be important: a division of the LCIA Court rejected a challenge to an arbitrator whose former firm provided legal advice to the respondent. It was observed that the 'professional ties were severed' and that the facts of the challenge indicated that no personal relationship had developed.¹⁷ An example of a relationship falling on the other side of the line is provided by the Fremarc decision, when the French courts considered as irregularly constituted a tribunal in which one of the arbitrators had not disclosed the fact that he had been nominated three times before by the same party.¹⁸

An obviously improper relationship would exist if an arbitrator was corrupted by one of the parties, or exposed to a suspicion of such corruption by, for example, the acceptance of gifts, hospitality or entertainment. In some cases, such conduct is the subject of specific rules. For example, the rules of the Chartered Institute of Arbitrators state that 'an arbitrator shall not accept any gift or substantial hospitality, directly or indirectly, from any party to the arbitration, except in the presence of the other parties and/or with their consent.'¹⁹ But, even in the absence of such a rule, such behaviour would plainly expose the recipient to objections based upon lack of impartiality.

Disclosure and transparency

Fundamental to ensuring both the fact and visibility of independence, impartiality and neutrality is the need for transparency. Most institutional rules expressly require an arbitrator to disclose to the parties all information that the parties might consider to be prejudicial to his neutrality. Different institutional and national rules prescribe their own standards for achieving such transparency, but the IBA Guidelines are increasingly used as the yardstick for judging which matters require disclosure.

The IBA Guidelines require disclosure of facts or circumstances 'that may, in the eyes of the parties, give rise to doubts as to the arbitrator's impartiality or independence.'²⁰ The Guidelines describe three broad categories of such facts and circumstances, which are divided into lists of red (waivable and non-waivable), green and orange. The situations on the non-waivable red list are those that give rise to a conflict of interest that cannot be resolved by disclosure (eg, an arbitrator having a controlling influence or a financial interest in one of the parties). In the case of a waivable red list situation (eg, an arbitrator having previously advised one of the parties), an arbitrator can accept the appointment only with the consent of the parties. The orange list sets out circumstances giving rise to justifiable doubts as to the arbitrator's impartiality or independence in the eyes of the parties (eg, when an arbitrator's law firm advises one of the parties in an unrelated matter or when an arbitrator and a party's counsel are members of the same chambers). The green list contains situations which create no duty of disclosure (eg, when an arbitrator and a counsel are members of the same professional association, or previously worked as co-counsel). However, the IBA working group itself acknowledges that the 'borderline between the situations indicated is often thin' and even by reference to the Guidelines it is not always easy to determine whether or not disclosure is required. In such cases, it is suggested that an arbitrator should err on the side of transparency, rather than risk having objections taken at a later date.

The completeness of disclosure made by an arbitrator can be crucial when a court or an institution comes to decide on a challenge or is dealing with an application to set aside the award. Even if the information withheld would not otherwise disqualify an arbitrator, the fact that he did not disclose it may be interpreted as creating the appearance of partiality:

Failure to make such disclosure creates an appearance of bias, and may of itself be a ground for disqualification even though the non-disclosed facts or circumstances would not of themselves justify disqualification.²¹

One of the most debated questions is whether the disclosure obligation encompasses an active duty to investigate possible conflicts. General Standard 7 of the IBA Guidelines refers to an arbitrator's 'duty to make reasonable enquiries to investigate any potential conflict of interest, as well as any facts or circumstances that may cause his or her impartiality or independence to be questioned.' The Guidelines also state that the 'failure to disclose a potential conflict is not excused by lack of knowledge if the arbitrator makes no reasonable attempt to investigate.'

To date, there has been no landmark decision by a European court or institution on this issue. Looking therefore towards the United States for possible guidance, it appears that different circuits have adopted conflicting approaches. A compromise solution was though recently suggested by a second circuit judge:

We are not creating a free-standing duty to investigate ...But when an arbitrator knows of a potential conflict, a failure to either investigate or disclose an intention not to investigate is indicative of evident partiality.²²

Such an approach is eminently sensible and should be adopted on a global basis in relation to international arbitrations.

The standard to be applied

What is the standard then to be applied in judging whether the circumstances amount to a breach of the obligations of impartiality or independence? Under the English Arbitration Act, a party can request the removal of an arbitrator if the party believes that 'circumstances exist that give rise to justifiable doubts as to [the arbitrator's] impartiality.'²³ Article 10(1) of the UNCITRAL Arbitration Rules likewise states: 'any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence,'²⁴ and indeed many arbitral rules and national laws apply this 'justifiable doubts' standard as a measure for this purpose. The approach of the French courts, for example, to the issue has been to treat as objectionable any circumstance 'that may affect the arbitrator's judgment and raise a reasonable doubt, in the mind of the parties, as to these qualities [independence and impartiality].'²⁵ The Swedish Arbitration Act provides that 'an arbitrator shall be discharged if there exists any circumstance which may diminish confidence in the arbitrator's impartiality.'²⁶

What constitutes an inappropriately close connection, likely to lead to bias, is often a matter of opinion. The 'justifiable doubts' criterion is, as recommended by the IBA Guidelines, to be evaluated by reference to 'a reasonable third person's point of view having knowledge of the relevant facts'.²⁷ However, parties from different cultural backgrounds might well take a different view about the type of information which should be disclosed and whether a particular connection or relationship between an arbitrator and a party's counsel, for example, would affect the arbitrator's impartiality. Therefore the subjective nature of the 'reasonable third person' approach may give rise to conflicting views in an international context.

In AT&T Corp v Saudi Cable Co, the English court, when interpreting the meaning of 'justifiable doubts' in the Arbitration Act, applied to arbitrators the same test as in the case of judges, namely whether there was 'the real danger of bias.' In the case itself, the chairman of the tribunal failed to disclose that he was a non-executive director of a competitor of the claimant but the court dismissed the application for his removal, finding that, in the circumstances, the relationship did not carry with it such a real danger of bias.²⁸

In ASM Shipping, on the other hand, the English court found partiality in a case where one of the arbitrators had formerly acted as counsel in proceedings in which a key witness to the pending arbitration had allegedly failed to disclose documents.²⁹ The court cited, inter alia, article 12 of the UNCITRAL Model Law and applied the test of whether 'a fair minded and informed observer would conclude having considered the facts... [that there was a] real possibility that the tribunal was biased.'³⁰ The court observed that, although it would not normally be a problem for an arbitrator to sit in a case, having previously cross-examined one of the witnesses, the position could be different 'if the contact had been a short time before, and allegations of dishonesty had been made.'

In reaching its decision on a challenge to a sole arbitrator, a division of the LCIA Court held that private meetings with a party's counsel during the hearing created an appearance of bias for a fair-minded observer.³¹ In doing so it concluded that there was no distinction between the 'real possibility of bias' test, developed under English common law, and the 'justifiable doubts' test referred to in the English Arbitration Act.

It is suggested that the 'justifiable doubts' and 'real danger of bias' criteria, to the extent that they have not been adopted universally in relation to arbitral appointments, provide the most appropriate yardstick for measuring whether circumstances give rise to a breach of the obligations of impartiality and independence, particularly when applied in a multinational, multicultural context.

Continuing ethical obligations of an arbitrator

There are a number of obligations of an arbitrator, having their roots in the ethical framework which circumscribes arbitration, which continue throughout the currency of the appointment and thereafter. Although equally important, these often attract less attention than the obligations of impartiality and independence in relation to the arbitrators themselves. The foremost of these are competence and diligence, confidentiality and duties in relation to parallel and subsequent proceedings.

Competence and diligence

A prospective arbitrator should accept an appointment only if he is fully satisfied that he is competent to determine the issues in dispute.³² Once he is appointed, an arbitrator is expected by the parties to conduct the proceedings diligently and render an award in a timely manner. The English Arbitration Act requires the arbitral tribunal to proceed as efficiently as possible.³³ Some arbitral institutions expressly reserve the authority to remove an arbitrator who is not diligent enough.³⁴

Applications to remove an arbitrator based on alleged incompetence are relatively rare since a prospective arbitrator's qualifications are generally known at the time of nomination or appointment. An example, however, is provided by a decision whereby a division of the LCIA Court rejected such a challenge brought on the basis that a non-English arbitrator had insufficient experience and knowledge of English insurance law and practice. In rejecting the application, the division noted that the arbitrator was fully qualified and that it would be contrary to the practice of international arbitration to have only English arbitrators decide upon matters of English law.³⁵

Confidentiality

Although not every arbitral regime expressly provides for confidentiality of the proceedings,³⁶ there are many who consider that such a duty applies implicitly to every arbitrator. ³⁷

The view is generally that a duty of confidentiality subsists, in relation to both the award and the facts of the case, even after the award is rendered. Confidentiality in such circumstances is supported in some cases by appropriate rules. For example, Rule 9 of the IBA Rules of Ethics compels arbitrators to respect the confidentiality of the deliberations of the tribunal and the contents of the award unless released from this obligation by the parties.

There are also practical reasons why confidentiality should be maintained. For example, in Laker Airways, the Court indicated that the outcome of the case could have been different (ie, the arbitrator and a party representative being from the same chambers could have been considered as indicative of the arbitrator's partiality) if the claimant had demonstrated a danger of dispersion of confidential information among members of the same chambers. An arbitrator or counsel may well be challenged if his role in an arbitration would inevitably require him to rely on, or make improper use of, confidential information gained in a previous arbitration. This is particularly so in France where arbitrators are regarded as having ethical obligations to the parties, analogous to those owed to clients.³⁸

Parallel or subsequent matters

The IBA Guidelines state that the arbitrator's duty to be impartial and independent ends when the arbitral tribunal has rendered the final award or 'the proceedings have otherwise been finally terminated.'³⁹ However, an arbitrator should be aware that his ethical duties in a particular arbitration may affect his ability to sit as an arbitrator or as a counsel in parallel or subsequent proceedings. Such objections, though, can generally not be sustained in arbitration proceedings themselves since a tribunal arguably has no say in ethical matters applicable to counsel, its jurisdiction being limited to deciding issues between the parties. Such objections are therefore typically brought before the Bar associations or courts with supervisory powers over the counsel or law firm in question.

In Telecom Malaysia v Ghana, the Republic of Ghana sought to rely on an award in an arbitration between RFCC and Royame du Maroc. One of the arbitrators on the Telecom Malaysia tribunal disclosed that he had been retained as counsel by RFCC in connection with its attempts to annul the award. A Dutch court ruled that the arbitrator must resign as counsel to RFCC in order to be able to sit in the Telecom Malaysia case. The court considered that it would be difficult for him to express an impartial opinion on Ghana's submissions while arguing simultaneously why the case had been wrongly decided.⁴⁰

An arbitrator's prior involvement in a related case is not, however, always considered material to his impartiality as an arbitrator. In Qatar v Creighton, the French Cour de Cassation refused to set aside an award in such circumstances, explaining that previous proceedings involved Creighton and one of it subcontractors and did not concern the relationship between the parties in the arbitration at hand.⁴¹

* *

The increasing growth and popularity of arbitration and its diversification into new markets has opened the field to lawyers and practitioners from a variety of jurisdictions who are subject to different professional ethical rules, or in certain cases, to no applicable rules. Unlike litigation proceedings before national courts, where there is a 'level playing field' between the parties' counsel on ethical issues, and where all the judges are subject to the same statutory and regulatory regimes, arbitration does not enjoy any central or overarching form of regulation. Ethical standards for counsel and arbitrators have accordingly been addressed over the years in a more ad hoc fashion.⁴² Recent initiatives by various arbitration committees and organisations (such as the Chartered Institute of Arbitrators and the arbitration committees of the ABA and IBA) to introduce guidelines and ethical codes for the industry are therefore to be welcomed. Even such non-binding codes of practice can help to set appropriate international norms which hopefully will be enforced where necessary by national courts and at the very least encourage professional acceptance of common ethical standard in the field of international arbitration.

Notes

* The author acknowledges the valuable assistance of Maria Gritsenko in the preparation of this article.

1. See, eg, article 11(1) of the ICC Rules of Arbitration: Challenges can be made based on 'an alleged lack of independence or otherwise...' (emphasis added).
2. See, eg, article 10.2 of the LCIA Rules: 'If any arbitrator acts in deliberate violation of the Arbitration Agreement (including these Rules) or does not act fairly and impartially as between the parties or does not conduct or participate in the arbitration proceedings with reasonable diligence, avoiding unnecessary delay or expense, that arbitrator may be considered unfit in the opinion of the LCIA Court.' Under article 12(2), the ICC Court has the power to remove an arbitrator who 'is not fulfilling his functions in accordance with the Rules or within the prescribed time limits.'
3. Introductory Note of the IBA Rules of Ethics for International Arbitrators (1987). The IBA Rules of Ethics are superseded by the IBA Guidelines on Conflicts of Interest in International Arbitration (2004) with respect to the obligations of impartiality, independence and disclosure — see A Redfern, M Hunter, N Blackaby and C Partasides, Law and Practice of International Commercial Arbitration (3d ed, 2004), pp5-27.
4. These issues are analysed in light of the developments in Europe, the US approach being outside the scope of this article. There are, however, a number of new initiatives in the United States, such as the 2004 revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes and the far-reaching draft of the ABA Dispute Resolution Section on 'Arbitrator Disclosure Best Practices', currently under discussion.
5. AT&T Corp v Saudi Cable Co [2000] 2 All ER (Comm) 625.
6. Re Medicaments and Related Classes of Goods, [2001] 1 WLR 700 (as applied to judges).
7. See sections 24 and 33 of the Act.
8. The Departmental Advisory Committee's report on the Arbitration Act. Other national laws refer only to impartiality; see, for example Section 8 of the 1999 Swedish Arbitration Act.
9. Although there is no explicit requirement of impartiality in article 7, article 15 (2) provides that 'in all cases, the Arbitral Tribunal shall act fairly and impartially.'
10. Derains & Schwartz, A Guide to the New ICC Rules of Arbitration (Kluwer, 1998), ch 4, p109. An attempt to remove an arbitrator in an ICC proceeding based on the lack of 'independence of mind' was unsuccessful. The ICC Court considered that the fact that the chairman of the tribunal had expressed political opinions against a certain country of which the claimant's shareholder was a national, and had also allegedly expressed political opinions in favour of one of the respondents, was not sufficient to remove him from the case — decision cited by Anne Marie Whitesell in 'Independence in ICC arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators', Independence of Arbitrators – 2007 Special Supplement, ICC International Court of Arbitration Bulletin, p32.
11. See, eg, A Redfern, M Hunter, N Blackaby and C Partasides, Law and Practice of International Commercial Arbitration (3d ed, 2004) at 4.54: '[...] there has therefore been a move towards considering them [independence and impartiality] as a 'package', and to use them as parallel tools for assessing the potential for actual or apparent bias. They are rarely used on their own, individually, but are usually joined together as a term of art.'
12. See, eg, Section 73(1) of the English Arbitration Act; article 10(4) of the LCIA Rules; article 11(2) of the ICC Rules.
13. Federal Supreme Court Decision (FCD) 4A_506/2007 of 20 March 2008: 'In light of this information, the claimant at the very least could have been expected to conduct further enquiries into the nature and membership of the organisation, and in particular to ask himself if other members of the panel, and even the counsel to the opponent, were also members.' Excerpts of the decision are translated by M Scherer in 'New Case Law from Austria, Switzerland and Germany Regarding the IBA Guidelines on Conflicts of Interest in International Arbitration', Transnational Dispute Management, July 2008, p7.
14. Laker Airways Inc v FLS Aerospace [1999] 2 Lloyds Rep 45, p52.
15. Geoff Nicholas and Constantine Partasides, 'LCIA Court Decisions on Challenges to Arbitrators: a Proposal to Publish', Arbitration International, Vol 23, No. 1, p26.
16. Kuwait Foreign Trading Contract & Investment Co, v Icori Estero SpA, Cour d'Appel de Paris, 29 June 1991, cited by Rajesh Pillai, 'Independence and Impartiality: The Situation of English Barristers Acting in Arbitrations,' Transnational Dispute Management, July 2008.
17. Geoff Nicholas and Constantine Partasides, 'LCIA Court Decisions on Challenges to Arbitrators: a Proposal to Publish', Arbitration International, Vol 23, No. 1, pp13-14.
18. Fremarc v ITM Enterprises, Cour de Cassation, 6 December 2001, Rev Arb 2003 (4).
19. Part 2, Rule 2 of the Code of Professional and Ethical Conduct of the Chartered Institute of Arbitrators.
20. Article 7(2) of the ICC Rules requires disclosure of 'any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties.' The UNCITRAL Model Law/Arbitration Rules requires disclosure of the circumstances that 'are likely to give rise to justifiable doubts as to [an arbitrator's] impartiality and independence'. The disclosure requirement is broader than the disqualification standard: an arbitrator can be removed only when circumstances 'give rise' to justifiable doubts about independence/impartiality (article 12(2)).
21. Article 4.1 of the IBA Rules of Ethics.
22. Applied Industrial Materials Corp v Ovalar Makine Ticaret Ve Sanayi, AS, 492 F3e 132 (2d Cir 2007) (emphasis added)
23. Section 24. Also, under Section 68, an award may be challenged on the ground of 'serious irregularity,' which includes a failure by the tribunal to comply with its general duty under section 33 of the Act to act fairly and impartially.
24. There is an identical provision in article 12 of the UNCITRAL Model Law.
25. Qatar v Creighton Ltd, Cour de Cassation, 16 March 1999, Bulletin 1999 I No. 88 p 59 : '[I]l appartient au juge de la régularité de la sentence arbitrale d'apprécier l'indépendance et l'impartialité de l'arbitre, en relevant toute circonstance de nature à affecter le jugement de celui-ci et à provoquer dans l'esprit des parties un doute raisonnable sur ces qualités, qui sont de l'essence même de la fonction arbitrale.'
26. Section 8 of the Swedish Arbitration Act 1999.
27. General Standard 2, IBA Guidelines on Conflicts of Interest in International Arbitration.
28. AT&T Corp v Saudi Cable Co [2000] 2 All ER (Comm) 625. A 'real danger of bias' test was also applied in Laker Airways — see below.
29. ASM Shipping Ltd of India v TTMI Ltd of England, [2006] 1 Lloyd's Rep 375.
30. Id, pp387-388.
31. Geoff Nicholas and Constantine Partasides, 'LCIA Court Decisions on Challenges to Arbitrators: a Proposal to Publish', Arbitration International, Vol 23, No. 1, pp15-16.
32. Article 2.2 of the IBA Rules of Ethics.
33. Section 33(1)(b) of the Act reads as follows: 'The tribunal shall ... adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.'
34. LCIA article 10.2, ICC article 12(2), cited above.
35. Geoff Nicholas and Constantine Partasides, 'LCIA Court Decisions on Challenges to Arbitrators: a Proposal to Publish', Arbitration International, Vol 23, No. 1, p41.
36. Confidentiality of the proceedings and/or award is guaranteed, eg, by article 30 of the LCIA Rules, article 46 of the SCC Rules, article 32(5) of the UNICTRAL Rules.
37. See, eg, Rule 4 of the Chartered Institute of Arbitrators' Code of Professional and Ethical Conduct: 'An arbitrator shall be faithful to the relationship of trust and confidentiality inherent in that office.' For discussions on the duty of confidentiality in international arbitration, see J Paulsson and N Rawding, 'The Trouble with Confidentiality', Arbitration International, Vol 11 No. 3 (1995), pp303-320; H Bagner, 'Confidentiality — a fundamental principle in international commercial arbitration?', Journal of International Arbitration, Vol 18 No. 2 (2001), pp243-249; I Thoma, 'Confidentiality in English Arbitration Law: Myths and Realities About its Legal Nature', Journal of International Arbitration, Vol 25 No. 3 (2008), pp299-314.
38. Article 4.1 of the Reglement Interieur du Barreau de Paris provides that 'the attorney may not accept instructions from a new client if the secrecy of information provided by a former client risks being violated or if the attorney's knowledge of the business of such former client would favor the new client.' At the same time, French courts have developed a jurisprudence recognising the existence of a contract between an arbitrator and the parties to the arbitration: TGI Paris, June 13, 1990 and CA Paris, May 22, 1991, Bompard v Consorts C, 1996 Rev Arb 476; CA Paris, May 4, 1988, Chambre Arbitrale de Paris v the Republic of Guinea, 1988 Rev Arb 657; CA Paris, 19 December 1996, Qualiconsult v Groupe Lincoln, 1988 Rev Arb 121.
39. General Standard 1, IBA Guidelines on Conflicts of Interest in International Arbitration.
40. District Court of The Hague, Civil Law Section, Provisional Measures Judge, Challenge No. 17/2004, Petition No. HA/RK 2004.778, Decision of 5 November 2004.
41. Qatar v Creighton Ltd, Cour de Cassation, 16 March 1999, Bulletin 1999 I No. 88.
42. Compliance with ethical standards is essential to develop a reputation and get appointed or nominated — see S Jagusch, 'Starting out as an Arbitrator', (2005) 71 The Journal of the Chartered Institute of Arbitrators, 4, at 336: 'In this relatively small industry, reputations — good and bad — develop quickly. In the long term, further appointments and the trust of the arbitration community will only follow the arbitrators who develop reputations of complete independence and impartiality and who can be trusted to resolve the disputes before them without regard to such matters as the identity or influence of the parties or their counsel.'