For a Universal Standard for Conflicts Disclosures

Abstract

Amongst the many reforms of international arbitration that are currently discussed, the adoption of a universal standard for conflicts disclosures is particularly necessary. Currently, the subjective standard “in the eyes of the parties” that is adopted by the IBA Guidelines and the ICC Rules coexist with the objective standard “from the perspective of a fair-minded and informed observer”, as defined by the English Supreme Court in Halliburton. The author submits that the IBA-ICC standard is preferable for it fosters more complete disclosures and encourages transparency. However, the subjective standard does not eliminate the moral hazard of non-disclosures and the author recommends that it be combined with a purely objective requirement to disclose based on a pre-established list of circumstances.