1. Background to the Amendments in the 2024 Version of the IBA Guidelines
 

First published in 2004, the IBA Guidelines have become a widely accepted instrument reflecting international standards of impartiality and independence of arbitrators. The 2024 IBA Guidelines continue to be organized in two parts. Part One sets out general standards regarding impartiality, independence and disclosure. Part Two addresses a number of situations that commonly arise in international arbitration using a "traffic light system" of red, orange and green lists, which has contributed to the practical implementation of the IBA Guidelines. 
 
The 2024 Guidelines follow a survey conducted amongst arbitration practitioners and other stakeholders in 2022. The survey confirmed that the IBA Guidelines remain a useful tool and that a complete overhaul of the 2014 Guidelines was unnecessary. Nevertheless, there were certain areas in which the 2014 version needed to be modernized or fine-tuned.

The changes in the 2024 Guidelines emphasize the importance of the general standards set out in Part One of the Guidelines. These general standards must always be considered when assessing conflicts of interest and the need for disclosure and cannot be subordinated to the traffic light lists set out in Part Two.

2. Amendments to the General Principles

Some of the most relevant amendments to the general standards in Part One of the Guidelines:

• Arbitrator's disclosure impeded by secrecy rules: the new General Standard 3(e) calls on arbitrators not to accept an appointment or resign if the arbitrator considers that he or she should make a disclosure, but that professional secrecy rules or other rules of practice or professional conduct prevent such disclosure.
• Failure to disclose: the new General Standard 3(g) expressly recognizes that a failure to disclose certain circumstances does not necessarily mean that a conflict of interest exists;
• Parties' due diligence obligation: General Standard 4(a) includes a presumption that a party shall have learned of any fact or circumstance which a reasonable enquiry would have yielded if conducted at the outset of or during the proceedings and waived the right to raise an objection based on that fact or circumstances if not raised within 30 days. 
• Relationship between the arbitrator and the arbitrator's law firm or employer: the text of General Standard 6 – in particular the concept of "law firm" – has been modernized to reflect the evolution in the structure and mode of international legal practice.

3. Amendments to the Traffic-Light System

The following additions to the orange list are the amendments which are most relevant in practice.

• Experts: arbitrator currently serves, or has acted within the past three years, as an expert for one of the parties or an affiliate of one of the parties in an unrelated matter (Item 3.1.6), or has, within the past three years, been appointed as an expert on more than three occasions by the same counsel, or the same law firm  (Item 3.2.9). At the same time, it is clarified that the arbitrator, when acting as arbitrator in another matter, heard testimony from an expert in the current proceedings constitutes a Green List Item (Item 4.5.1).
• Co-arbitrators: arbitrator and counsel for one of the parties currently serve together as arbitrators in another arbitration (Item 3.2.12), or an arbitrator and their fellow arbitrator(s) currently serve together as arbitrators in another arbitration (Item 3.2.13).
• Relationship between arbitrator and expert: arbitrator is instructing an expert appearing in the arbitration proceedings for another matter where the arbitrator acts as counsel (Item 3.4.3).
• Mock trials: arbitrator appointed by one of the parties to assist in mock-trials or hearing preparations on two or more occasions within the past three years (Item 3.2.10).
• Publicly advocating an opinion on the case: the 2024 version of the Guidelines clarifies that this orange list situation includes advocating an opinion through social media or on-line professional networking platforms (Item 3.4.2).

If you require advice on how the 2024 IBA Guidelines may affect your choice of arbitrators or potential challenges to arbitrators, please reach out to the undersigned or your regular contact at Schellenberg Wittmer.