Ethics, Conduct and Professional Standards for Arbitrators
Independence, impartiality and disclosure
Independence concerns relationships; impartiality concerns state of mind. Candidates must know that disclosure obligations are continuing and that the test is usually objective: whether a reasonable third party would doubt the arbitrator's impartiality. Traps include assuming that disclosure of a relationship cures a conflict, that prior service as counsel for a party is automatically disqualifying, and that the IBA Guidelines on Conflicts of Interest are binding law (they are soft law, though widely used).
Conduct of the proceedings
The arbitrator must treat the parties equally and give each a reasonable opportunity to present its case. Ex parte communications with one party about the merits are prohibited; administrative communications should be copied to all. The arbitrator must avoid delegating decision-making to tribunal secretaries and must not accept gifts or hospitality that could create an appearance of bias.
Fees, advertising and competence
Understand the rules on fee arrangements, the prohibition on contingency fees tied to outcome in many jurisdictions, and the limits on advertising and solicitation. An arbitrator must decline an appointment if lacking the necessary expertise or availability.
Worked example
An arbitrator is appointed in a dispute involving a company where her former firm did work two years ago. She should disclose the relationship even if she believes she can be impartial, because the objective test focuses on appearance. Rule of thumb: when in doubt, disclose, and record the disclosure in writing.