History and Global Recognition

The 2024 IBA Guidelines on Conflicts of Interest in International Arbitration serve as a soft law instrument frequently applied by arbitrators globally, whether in ad hoc arbitrations or under the rules of national or international arbitration centers. Originating in 2004 and later updated in 2014 and 2024, these guidelines have earned widespread international recognition, with parties worldwide expecting arbitrators to assess impartiality, maintain independence, and make disclosures accordingly.

Core Standards and Significant Amendments

The 2024 IBA Guidelines are divided into two primary sections. Part I emphasizes fundamental principles such as impartiality, independence, and the duty of disclosure. Notable amendments in this section highlight the critical importance of the General Standards compared to Part II, which outlines the traffic light system—a framework that includes the Non-Waivable Red List, the Waivable Red List, the Orange List, and the Green List, which has become a benchmark in international arbitration.

Amendments to the General Standards (Part I)

• Arbitrator’s Disclosure Obligation: General Standard 3 underscores the arbitrator’s duty to disclose any facts or circumstances that could be relevant to the interests of the parties, ensuring transparency. Updates in General Standard 3 clarify several previously unaddressed aspects, including:
  • If an arbitrator is required to make a disclosure but is restricted by confidentiality rules or other professional or legal obligations, they should decline the appointment or resign.
  • The arbitrator should not consider the stage of the proceedings when deciding whether to make a disclosure.
  • A failure to disclose certain facts does not automatically indicate a conflict of interest or justify disqualification if the parties believe it raises doubts about the arbitrator’s impartiality.
• Waiver by the Parties: General Standard 4 specifies that a party forfeits its right to object to potential conflicts of interest if it fails to do so within 30 days of becoming aware of such circumstances.

Traffic Light System and Practical Application (Part II)

Part II of the 2024 IBA Guidelines introduces the traffic light system, categorizing situations based on their potential to create conflicts of interest. It consists of:

• Non-Waivable Red List: Situations where conflicts of interest are evident and cannot be waived by the parties.
• Waivable Red List: Situations where conflicts are likely but may be waived with party consent.
• Orange List: Situations that may or may not present a conflict of interest, which should be disclosed for clarity.
• Green List: Situations with no conflicts of interest, where disclosure is unnecessary.

Key Additions to the Orange List

The 2024 IBA Guidelines introduce the following significant additions to the Orange List:

• The arbitrator has served or acted as an expert for one of the parties or its affiliate in an unrelated matter within the last three years.
• The arbitrator has been appointed as an expert by the same counsel or law firm on more than three occasions in the past three years.
• The arbitrator has assisted in mock trials or hearing preparations on more than three occasions for the same counsel or law firm in the past three years.
• The arbitrator and counsel for one of the parties are currently serving as arbitrators in another arbitration.
• The arbitrator is currently instructing an expert appearing in another arbitration where the arbitrator acts as counsel.

Inclusion of Social Media

A key update in the 2024 IBA Guidelines is the inclusion of social media considerations. Now, if an arbitrator publicly supports a position on a case through social media, online platforms, or any published work, it is deemed a relevant disclosure factor.

The revisions in the 2024 IBA Guidelines underscore the ongoing efforts to keep them relevant to modern arbitration practices. These guidelines will continue to serve as internationally accepted standards, offering valuable guidance to the field of international arbitration for the foreseeable future.

-VTA-

VTA’s Model Arbitration Clause: “Mọi tranh chấp phát sinh từ hoặc liên quan đến hợp đồng này sẽ được giải quyết bằng trọng tài tại Trung tâm Trọng tài Thương nhân Việt Nam (VTA) theo Quy tắc tố tụng trọng tài của Trung tâm này”. “Any dispute arising out of or in relation with this contract shall be resolved by arbitration at the Vietnam Traders Arbitration Centre (VTA) in accordance with its Rules of Arbitration”.

The Vietnam Trade Arbitration Center (VTA) is responsible for organizing and coordinating the resolution of business disputes through institutional arbitration, with jurisdiction over disputes including: (i) disputes arising from commercial activities between parties; (ii) disputes involving at least one party engaged in commercial activities; and (iii) disputes as prescribed by law to be resolved by arbitration.