On a sunny Thursday afternoon, 10 April 2025, Simmons & Simmons’ Paris office hosted a full house event as part of the 9th edition of Paris Arbitration Week, focusing on the evolution of disclosure practices in light of the IBA Guidelines on Conflicts of Interest in International Arbitration (“IBA Guidelines”).
The panel, moderated by Mr Philippe Cavalieros (Partner and Global co-head of Simmons & Simmons’ international arbitration practice), featured two leading experts who have shaped the IBA Guidelines: Professor Bernard Hanotiau (Founding Partner of Hanotiau & Van Den Berg) and Ms Erica Stein (Independent arbitrator at Stein Arbitration). The key question that lay at the heart of the interactive discussion was simple yet crucial: In the close-knit world of international arbitration, where professional paths crisscross and familiar faces are a constant, where do we draw the line between what needs to be disclosed and what doesn’t?
Mr Cavalieros opened the discussion with a striking figure from the International Chamber of Commerce: the total amount in dispute of all current arbitrations administered under its rules has reached 354 billion USD. This hints at the obvious reality: arbitration has become more complex and contentious, prompting a greater need for regulation. Mr Cavalieros noted that the IBA Guidelines, adopted in 2004, have been instrumental in addressing emerging challenges, particularly those related to impartiality and independence, and in establishing the ethical framework for arbitrators.
The IBA Guidelines consist of two parts: Part I, the “General Standards”, sets out the general principles governing impartiality, independence, conflict, disclosure, relationships, and duties of all parties involved in an arbitration, and Part II, the “Traffic Light System”, provides of a non-exhaustive list of circumstances (The Red, Orange, and Green lists), which commonly arise in practice.
How do Part I and Part II of the IBA Guidelines interact? Ms Stein explained that Part I guides arbitrators in decisions about accepting or declining appointments, continuing their function, or disclosing potential conflicts. She stressed that there is no “one rule” and that arbitrators should evaluate the facts holistically in light of the General Standards. Regarding Part II, the traffic light lists are not, and should not be, viewed as the “first and last stop” when determining whether a conflict exists or disclosure is required. Ms Stein clarified that the lists offer a set of illustrative examples, primarily intended to assist and orient arbitrators on what should be disclosed, without dictating every scenario. Albeit distinct, both parts are intertwined and should always be read together.
Key Changes to the Guidelines. Ms Stein highlighted key changes to the General Standards (“GS”) under the 2024 revision of the Guidelines. One change now imposes a duty of curiosity on the parties (GS 4), specifying that a waiver considers whether reasonable inquiries using publicly available information could have enabled the parties to identify relevant facts or circumstances at the outset or during the proceedings. Another change expands GS 7, requiring parties to disclose any relevant information about entities related to the dispute and clarify the nature of their relationship to it. Ms Stein noted that while the overall changes were not massive, they improved clarity and reflected the global arbitration community’s views.
A Generational Shift in Disclosure Practices. Professor Hanotiau, reflecting on his decades of experience in arbitration, observed how attitudes toward disclosure have evolved. In the early years of arbitration, the pool of arbitrators was very limited, and their impartiality was rarely questioned. Today, however, suspicion is more common – illustrated by a recent investment arbitration case where it took two years to appoint a chair, showing how the disclosure process also affects the constitution of an arbitral tribunal. He mentioned the influence of U.S. practices, where party-appointed arbitrators were traditionally expected to advocate for their appointing parties. Professor Hanotiau described the shift in disclosure practices as a “problem of generation”, suggesting that while changing attitudes have influenced current practices, they may, in some cases, lead to an overly cautious approach.
The Traffic Light Lists: What Needs to be Disclosed? First, in evaluating the existence of conflicts of interest, the IBA Guidelines adopt an objective test – based on the view of a “reasonable third person”. In contrast, when determining the obligation to disclose, a subjective “in the eyes of the parties” test is applied. Ms Stein emphasised that any conflict or circumstance raising doubts as to the arbitrator’s impartiality or independence must be assessed on a case-by-case basis. She noted that it was impossible to include in the traffic light lists all potential conflicts that may arise in practice; it is ultimately incumbent upon the arbitrator to carefully assess whether a conflict of interest exists in the case at hand.
The panellists highlighted new circumstances added to the Orange list in the 2024 revision, which outlines situations where arbitrators are required to make a disclosure. These include prior involvement in mock-trials or hearing preparations with a party in unrelated matters, acting as an expert for a party in another case, or instructing an expert appearing in the current proceedings for another matter where the arbitrator acts as counsel. Ms Stein remarked on the Review Task Force’s reluctance to introduce “too many” new situations to avoid creating the impression that the lists are exhaustive.
Friendships and Conflict: A Fine Line. The discussion also tackled the issue of close personal friendships in international arbitration. The Orange list includes circumstances where an arbitrator has a “close personal friendship” with a party’s counsel, representative, a person or entity having a controlling influence on a party, or a witness or expert involved in the proceedings. Mr Cavalieros pointed out that the 2004 version of the Guidelines offered a more elaborate definition of such friendships, which was eliminated in the amended versions, raising questions about this change. The panellists explained that forming friendships over time is “normal” within the arbitration community, and concerns arise depending on the depth of the relationship. They agreed that the 2004 phrasing was “too descriptive”, as perceptions of personal connections vary, and a broader definition allows for greater flexibility in assessing the nature and closeness of each relationship.
The discussions continued informally over drinks at the firm’s rooftop cocktail reception, with candid reflections on the event’s insights: what began as an effort to codify what appeared to be the best practice, the IBA Guidelines have now become the very benchmark that may help resolve the disclosure dilemma.
For further information, please refer to the full article published in the special edition “Biberon” newsletter on Friday May 2, 2025, with thanks to Paris Baby Arbitration.
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