1. Disclosure under the IBA guidelines 2. Procedure to adopt in a particular situation 3.

What are you going to do if you are a counsel interested in the arbitration but the counsel refused 4. What is lacking in the IBA list & how to appoint the arbitrator, what are you going to do if you are the arbitrator? 5. ICC arbitration, one of the parties refused to sign, what to do? 6. You are a counsel for an affiliate of a corporation involving a business dispute of a company who appointed you, what to do? what are the steps? 7. Illegal practice of law, what if one of the parties is not a lawyer? 8. Arbitration clause, what if you don't have jurisdiction but the client wants to proceed? What to do? 9. May a party withdraw the services of an arbitrator? May arbitrator withdraw on the ground that he doesnt know what to do?

PART ONE: GENERAL Qualifications of the Tribunal (Model Law) 1. Impartiality 2. Independence 3. Diligence 4. Others agreed to by the parties Qualifications of the Tribunal (Model Law) 1. Impartiality refers to state of mind 2. Independence refers to relationships 3. Diligence the arbitrator must be able to perform his/her functions without undue delay Qualifications of the Tribunal (Model Law) FOCUS: On Impartiality and Independence DUTY TO DISCLOSE The most important element in the requirement of impartiality and independence is disclosure (Redfern and Hunter on page 242 of Law and Practice of International Arbitration) Rule on disclosure also limit party autonomy failure to comply with duty to disclose may give rise to a challenge, which, if successful, will result to removal or disqualification of an arbitrator. Re Impartiality - a prospective arbitrator is required to disclose any circumstances which may give rise to justifiable doubts as to his impartiality (Model Law Art. 12.2). - the duty to disclose is continuing during the process Re Independence - a prospective arbitrator is required to disclose any circumstances which may give rise to justifiable doubts as to his independence (Model Law Art. 12.1). - the duty to disclose is continuing during the process Time - the disclosure should be made to the parties without further delay, from the time of his appointment and throughout the arbitral proceedings unless the parties have already been informed by him/her (see Model Law Article 12(1).) To Whom Addressed: - the parties per statute - requirements of transparency also require disclosure to the other arbitrators (if any), the administering institution (if any) and the appointing authority (if any).

DUTY TO DISCLOSE What to Disclose: General - matters touching on relationships and events, other than casual, that are related to the arbitration; the parties to the arbitration, including directors, important officers and significant stockholders; the other arbitrators, party representatives (or counsel for the parties), even important witnesses - in case of doubt, the unwritten rule is to disclose What to Disclose: Particulars - see discussion on the standards Effect of Rules of Confidentiality - if rules of confidentiality will prevent an arb from making a disclosure, then he should not accept or resign from the assignment (Derains and Schwartz: A Guide to the New ICC Rules, footnote no. 246 on page 22; also the IBA Guidelines) Effect of Lack of Knowledge -not an excuse for non-disclosure if the arbitrator failed to make the necessary investigation (see IBA Guidelines). Effect of Non-Disclosure -it is not the failure to disclose per se that would result to removal or disqualification. It is, rather, the resulting appearance of being partial or biased that will do so. Effects of Disclosure - on the plus side: it creates an impression that, in so far as the arb is concerned, he believes that he is not disqualified or is not in a conflict of interest situation. - on the plus side: it is the facts and the circumstances themselves that will determine whether or not the arbitrator were disqualified and no longer the appearance of being partial or biased. on the minus side: disclosure opens the way for parties to probe further to determine whether or not the disclosed fact or event is a ground for disqualification.

 THE STANDARDS 1. Eyes of the Parties Test (Subjective Test) standard for disclosure and disqualification in the ICC, some other institutions. 2. Objective Test the general rule. Reflected in the Model Law; also in the IBA Rules of Ethics. 2.a. The IBA Guidelines uses the Eyes of the Parties Test as its standard for disclosure and the objective test as its standard for disqualification. PART 2A: EYES OF THE PARTIES TEST An arbitrator must appear to be impartial and independent in the eyes of the parties. Non-disclosure by the arbitrator will justify a party in making speculations arising from verifiable or reasonably assumed facts; hence the arbitrator shall cease to appear impartial and independent in the eyes of the parties. The test is reflected in ICC Arbitration Rules (1988) Article 7.2. It is also reflected in the IBA Rules of Ethics for International Arbitration: Failure to make such disclosure creates an appearance of bias, and may itself be a ground for disqualification even though the non-disclosed facts or circumstances would not of themselves justify disqualification. What to Disclose - almost all relationships and events, other than casual, that are related to the arbitration; the parties to the arbitration, including directors, important officers and significant stockholders; the other arbitrators, party representatives (or counsel for the parties), even important witnesses. - in case of doubt, the unwritten rule is to disclose PART 2B1: THE OBJECTIVE TEST What to Disclose - x x x he shall disclose any circumstance likely to give rise to justifiable doubts as to his impartiality or independence. (Model Law Art. 12 (1)). -in case of doubt, the unwritten rule is to disclose PART 2B1a: REASONABLE THIRD PERSON TEST Intro: Introduced by the IBA Guidelines on Conflict of Interest in International Arbitration (IBA Guidelines) to temper the eyes of the parties test which, per the IBA, is subjective. - posited the view that there should be a limit to disclosure; reason. - adopted what it describes as an objective rule: an arbitrator must appear to be impartial and independent from the point of view of a reasonable third person having knowledge of the relevant facts.

Redfern and Hunter on page 242: There is thus a subtle difference, in this context, between the objective test as to whether the relevant facts would cause doubt in the mind of a reasonable third party, and the subjective test as to whether they might cause doubt in the mind of the parties involved in the specific case in question. Means Adopted by the IBA To Attain its Objectives - the Guidelines made a varied but nevertheless non-exhaustive list of possible situations that it classified into its so-called Green List, Orange List, Waivable Red List and Non-Waivable Red List. - note that the situations in the lists are examples. So, look for analogous situations when making a challenge. THE GREEN LIST No duty to disclose in situations within the Green List. Examples: 1. The arbitrator has a relationship with another arbitrator or with the counsel for one of the parties through membership in the same professional association or social organization. 2. The arbitrator has had an initial contact with the appointing party or an affiliate of the appointing party (or the respective counsels) prior to appointment, if this contact is limited to the arbitrators availability and qualifications to serve or to the names of possible candidates for a chairperson and did not address the merits or procedural aspects of the dispute. THE ORANGE LIST The duty to disclose exists in those situations falling within the Orange List Examples: 1. The arbitrators law firm has within the past three years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator. 2. The arbitrator holds one position in an arbitration institution with appointing authority over the dispute. 3. The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties. INCOMPLETE ORANGE LIST SITUATIONS - considered to be in the Green List even if they are not written there. - note that disclosure is discretionary in those cases involving situations where the 3-year period applies because of conflict of opinion as to the period THE WAIVABLE RED LIST The duty to disclose exists in those situations falling within the Red List. And, there should be a written and informed waiver on the part of the parties for the arbitrator to continue acting as such. Disclosure must include the fact that arb is in the waivable red list and needs waiver to continue. Examples: 1. The arbitrator has previous involvement in the case.

2. The arbitrators law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself. THE NON-WAIVABLE RED LIST The arbitrator is disqualified if the situation falls within the Non-Waivable Red List. Disclosure will not cure the disqualification. 1. There is an identity between a party and the arbitrator, or that arbitrator is a legal representative of an entity that is a party in the arbitrator. 2. The arbitrator is a manager, director, or member of the supervisory board, or has a similar controlling influence in one of the parties. 3. The arbitrator has a significant financial interest in one of the parties or the outcome of the case. 4. The arbitrator regularly advises the appointing party or an affiliate of the appointing party and the arbitrator or his or her firm derives a significant income therefrom. IMPORTANT NOTES: 1. The application lists do not purport to be comprehensive. They are guidelines. (per IBA). 2. The application lists states principles and examples of those principles. 3. The IBA also observed the possibility of borderline situations where a debate may exist as to whether or not the situation falls within one or the other application list. 4. Some situations may not be included in the specific examples. The proposition, for example that justifiable doubts the arbitrator may be influenced by other factors other than the merits would include a situation where the arbitrator is aware that what he was requested to do in connection with the arbitration is wrong, but he did it anyway, because of the possibility of financial or professional gain. EYES OF THE PARTIES STILL EXISTS The parties in making a challenge may still use the eyes of the parties test in Orange List Situations. Nevertheless, at the end of the day, the issue that may result to removal is whether or not the undisclosed fact or circumstance will create, from the point of view of a reasonable third person having knowledge of the relevant facts, justifiable doubts as to the arbitrators impartiality or independence. IMPORTANT NOTES: 1. In the situations falling within the Orange List, it is still the appearance of being partial or biased that will disqualify the arbitrator. The test to be applied is, however, the informed reasonable third person test. 2. The IBA Guidelines will only apply if adopted by the parties. If yes, it becomes rules. 3. The Application Lists is based on accepted practices and jurisprudence per the IBA. Must read: the IBA Guidelines. It supersedes the IBA Rules on Ethics in case of conflict.

PART THREE RULES OF DISCLOSURE IN THE CIAC COMMENCEMENT OF DUTY TO DISCLOSE Duty Commences Upon Acceptance of Appointment CIAC Rule 10 Sec 10.2. Upon acceptance of his appointment, the Arbitrator shall disclose in writing to CIAC any circumstances likely to create in either party a presumption of bias or which he believes might disqualify him as an impartial arbitrator. Such written disclosure shall be communicated to the parties immediately by the secretariat. x x x. DEFERMENT OF DUTY TO DISCLOSE Duty To Disclose May Be Deferred: CIAC Rule 10 Sec 11.3 During the preliminary conference the arbitrator who had failed to make his or her written disclosure required in the previous section shall disclose any circumstance likely to give rise to justifiable doubts as to impartiality or independence, including financial or personal interest in the outcome of the arbitration or any existence or past relationships with any individual or corporate party together with their respective relatives or principal stockholders/officers or foreseeable participant in the proceedings. x x x DUTY TO DISCLOSE AFTER THE PRELIMINARY CONFERENCE There seems to be no rule requiring an arbitrator to make any disclosure after the preliminary conference. It is submitted, however, that the duty exists notwithstanding the silence of the CIAC Rules. FAILURE TO DISCLOSE AS GROUND FOR CHALLENGE CIAC Rules has no express provision. Rule 9.6: A party may also request the inhibition of the arbitrator upon other just and valid reasons affecting independence, integrity, impartiality and interest. Query: What, then, is the effect of non-disclosure if, at the end of the day, it is the act, event or relationship which disqualifies? WITHDRAWAL OF ARBITRATOR CONDITIONED ON CIAC APPROVAL THE arbitrator concerned cannot just withdraw. It is the CIAC who shall make the decision. Rule 9.6.3: The arbitrator xxx may without admitting the existence of the ground of challenge, motion or request, choose to inhibit himself but his decision shall be subject to approval by the CIAC. Rule 9.6.5: The decision of CIAC to retin or replace an arbitrator shall be final. EVOLVING PRACTICE? Given the CIAC Rules, it would seem that an evolving practice in CIAC is for the arbitrator to simply withdraw if challenged, the withdrawal subject to and effective upon the approval by the CIAC. FINAL NOTES The words in CIAC Rule 11 Sec 11.3. xxx shall disclose any circumstance likely to give rise to justifiable doubts as to impartiality or independence are substantially the same as Model Law Article 12 (1) and in UNCITRAL Rules (1976) Article 9. CIAC has not announced that it is applying any test or standard in deciding the issue or whether or not an arbitrator were disqualified or should be removed.