Judicial Approaches to the IBA Guidelines on Conflicts of Interest in International Arbitration

Abstract

This paper seeks to close the gap in the research surrounding the IBA Guidelines by critically considering how national courts actually perceive and utilise the IBA Guidelines during the decision making process when determining conflicts applications. Through a doctrinal analysis of case law from various jurisdictions, this paper reveals the existence of two distinct judicial approaches. The first approach places heavy reliance on the IBA Guidelines and, as a result, they form an integral part of the adjudicative process. The second approach utilises the IBA Guidelines merely as a guide, a point of reference and a means of simply reinforcing judicial reasoning. It will be argued that the first judicial approach is highly unsatisfactory both from a legal and policy perspective. It will be argued that the second approach is to be desired because it remains consistent with the aims of the IBA Guidelines and it has enabled the courts to identify inherent weaknesses in the IBA Guidelines. Finally, recommendations for reforming aspects of the IBA Guidelines will be made in order that they may continue to be a source of guidance and assistance to the arbitration community and national courts.