The Map Is Not the Territory - But We Do Need Maps: How Helpful Are Guidelines on What Constitutes a Conflict of Interest, and on the Circumstances under Which Disclosure Is Required?
Eduardo Zuleta & María Marulanda
In the past few years, arbitral institutions and other international organizations have developed developed guidelines on what constitutes a conflict of interest, and on the circumstances under which disclosure is required, to help stakeholders in international arbitration navigate the complex territory of such conflicts. Despite the recent trend towards the development of this type of guidelines, their usefulness remains in debate. To address the question of their usefulness, this article focuses on the IBA Guidelines on Conflicts of Interest, which is arguably the best-known and most widely used instrument on conflicts of interest in international arbitration. Specifically, this article examines the reasons that led to the adoption of this type of guidelines; reviews some of the main criticisms and the underlying tensions; describes how they have been used by different stakeholders; and finally offers some insights into their usefulness. The authors' main contention is that these guidelines are helpful to the extent that they provide a common basis for arbitrators from different legal and cultural backgrounds to discharge their duty of disclosure and for parties to manage their expectations and to make informed choices regarding potential conflicts. In doing so, they help develop a uniform culture of disclosures, promote transparency, level the playing field, and potentially reduce the frequency of unfounded challenges.