‘Hardening’ the soft law of bias: an Indian perspective on the IBA guidelines

Abstract

ABSTRACT At the time of writing this article, the global arbitration community eagerly awaits as the United Kingdom Supreme Court hears arguments in its first ever case on an arbitrator challenge. Concerns regarding transparency and fairness in the arbitral process have brought the issues of independence and impartiality into renewed focus. Recent years have seen a greater push towards regulating conflicts of interest that arise from the connections of arbitrators. In 2015, towards the end of bringing the Indian regime on par with global standards, the IBA Guidelines on Conflict of Interest in International Arbitration were introduced into the Indian Arbitration and Conciliation Act of 1996, the only instance of such adoption in national law. The IBA Guidelines are a soft law instrument designed to help evaluate commonly arising connections that give rise to bias concerns. The Guidelines have certainly met their stated objective of introducing more stringent independence requirements in India, particularly in the case of state employees. At the same time, concerns remain as to whether the bright-line approach of the Guidelines is the best way to address a number of scenarios. This paper seeks to assess the suitability of the Guidelines in light of practices in other jurisdictions. By acknowledging a divergence in approaches to conflicts of interest, it can inform current discourse on developing binding norms for arbitrator independence.