Conflicts of Interest between Arbitrators and Counsel in International Arbitration: Should Arbitral Tribunals Have the Power to Disqualify Counsel

Abstract

This paper explores the issues that arise when there are alleged conflicts of interest between arbitrators and counsel in the area of international arbitration, and how they should be dealt with. An exploration of the background to this problem will be made, which includes a discussion on the evolution of the fairly insular international arbitration community. It will be shown that there are unequal obligations on arbitrators and counsel in regards to the obligation to remain impartial and independent. The question has arisen as to whether a tribunal may disqualify counsel on the grounds of a conflict of interest between them and an arbitrator. It is the author’s contention that tribunals should not have this power to disqualify counsel, unless reciprocal obligations of impartiality and independence are imposed on counsel. This is an area under current review, and it is hoped that this paper will provide another viewpoint.