The International Bar Association (‘IBA’), in collaboration with Shardul Amarchand Mangaldas & Co., One Essex Court, and Osborne Partners, recently convened a high-profile session on the ‘IBA Rules on Conflict of Interest for Arbitrators and Expert Evidence’. The event brought together eminent jurists, arbitrators, practitioners, and thought leaders from across the globe to deliberate on the ethical foundations of arbitration.
Distinguished Speakers
The keynote address was delivered by Justice K.V. Viswanathan, Judge of the Supreme Court of India. The session also featured insights from:
- Justice A.K. Sikri, former Judge, Supreme Court of India
- Ms. Chiann Bao, Independent Arbitrator
- Mr. Dietmar Prager, Litigation Partner, Debevoise & Plimpton LLP
- Mr. Darius Khambata, Senior Advocate
- Mrs. Pallavi Shroff, Managing Partner, Shardul Amarchand Mangaldas & Co.
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Mr. Montek Mayal, Partner, Osborne Partners
Keynote Highlights by Justice K.V. Viswanathan
Justice Viswanathan set the tone with a deeply reflective keynote on trust, impartiality, and independence in arbitration:
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Centrality of Trust: Arbitration derives legitimacy not merely from efficiency or technical expertise, but from the fairness perceived by parties. Trust that arbitrators remain free from hidden allegiances, and experts provide unbiased opinions, forms the bedrock of legitimacy.
“Arbitration is often described as the preferred mechanism for resolving cross-border disputes, but its attraction lies not in speed alone, nor merely in its technical expertise, but in the sense of fairness that parties derive from the process.”
– Justice KV Viswanathan, Judge, Supreme Court of India
- Evolution of the IBA Guidelines: Since their first release in 2004, and subsequent revisions in 2014 and 2024, the guidelines have become a globally accepted reference for arbitrators, institutions, and courts. Their traffic-light model (red, orange, green lists) has provided clarity while balancing principle and pragmatism.
“The IBA itself was founded in 1947, the year India got its independence, with the mission of advancing the rule of law and strengthening justice globally. Over the decades, IBA has become much more than a professional network, it has emerged as a standard setter in international arbitration.”
– Justice KV Viswanathan, Judge, Supreme Court of India
- 2024 Revision: The updated guidelines reflect contemporary realities, such as third-party funding, complex corporate structures, and professional secrecy rules. Key refinements include:
- Emphasis on proactive disclosure by arbitrators.
- Shared responsibility of parties to undertake reasonable inquiry.
- Broader coverage under General Standard 6A to include arbitrators’ employers and non-lawyers.
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Inclusion of nuanced situations, such as arbitrators’ participation in mock trials, within the orange list.
The Indian Perspective
Justice Viswanathan underscored how India has codified many of these principles into its statutory framework through the Arbitration and Conciliation Act, 1996, particularly with the 2015 amendments. Cases such as HRD Corporation v. Gail (India) Limited, 2017 SCC OnLine Del 8034, Voestalpine Schienen GmbH v. Delhi Metro Rail Corpn. Ltd., (2017) 4 SCC 665, Perkins Eastman Architects DPC v. HSCC (India) Ltd., (2020) 20 SCC 760, and most recently the November 2024 Constitution Bench ruling in Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV), (2025) 4 SCC 641, illustrate India’s robust jurisprudence on impartiality and bias. The Court has consistently stressed that “justice must not only be done but must also be seen to be done”, aligning with IBA’s dual standard of disclosure and impartiality.
International Developments
Across jurisdictions, courts have emphasised disclosure and perception of bias as vital to sustaining legitimacy. The UK Supreme Court’s decision in Halliburton Co v. Chubb Bermuda Insurance Ltd, [2021] A.C. 1083 reaffirmed the duty to disclose repeat appointments. Globally, the IBA guidelines are also informing discussions under the UN framework on codes of conduct for arbitrators in ISDS disputes.
Expert Evidence: The Nervous System of Arbitration
Justice Viswanathan also turned to the role of expert evidence, likening it to the “nervous system” of arbitration. Drawing lessons from miscarriages of justice in common law criminal trials, he stressed that:
- The issue lies not in the presence of experts but in the quality, independence, and humility of their testimony.
- Innovations in arbitration, including concurrent expert testimony and tribunal-appointed experts, demonstrate the system’s adaptability.
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Effective case management, as suggested by Professor Doug Jones, requires experts to work on common datasets and methodologies to prevent evidence from devolving into partisan advocacy.
Ethical Unity of Arbitrators and Experts
Both arbitrators and experts share a common ethical duty of candour, independence, and objectivity. Justice Viswanathan cautioned against experts becoming advocates for their clients, reminding that their paramount duty lies with the tribunal.
“As India continues its journey of reform and as the global community embraces a more sophisticated understanding of conflicts, it is this ethical culture that will sustain us. Therefore, let us resolve today that impartiality will not be treated as a mere formality and objectivity not as a slogan.”
– Justice KV Viswanathan, Judge, Supreme Court of India
Closing Reflections
In his closing remarks, Justice Viswanathan emphasised that the IBA guidelines, far from being mere procedural tools, are a declaration of professional values. Arbitration stands at a juncture where its efficiency is celebrated, but transparency and accountability are demanded in equal measure. The true legitimacy of arbitration, he stressed, lies not in speed alone but in unwavering trust, impartiality, and ethical discipline.
“We are the lifeblood of the arbitration process. To every arbitrator in this room, to every expert and to every counsel, you are not just a participant, you are a custodian of this trust.It is this unwavering vigilance, proactive candor and commitment to the principles we have discussed that will ensure that international arbitration remains what it was always intended to be, a respected, legitimate and trusted system of justice in its own right.”
– Justice KV Viswanathan, Judge, Supreme Court of India
He urged arbitrators, experts, and counsel to recognize their role as custodians of trust in the arbitral process, ensuring that international arbitration continues to be regarded as a respected, legitimate, and trusted system of justice.
Insights from the Panel
The session was moderated by Ms. Ila Kapoor, Partner, Shardul Amarchand Mangaldas & Co., who steered the discussion with a series of thought-provoking questions. Opening the conversation, she directed her first question to Ms. Chiann Bao, noting that Justice K.V. Viswanathan had already touched upon the revisions to the IBA Conflict of Interest Rules. She observed that the rules were first introduced in 2004, revised in 2014, and most recently updated in 2024, and invited Ms. Bao to share her insights on these revisions and their practical impact on international arbitration practice.
Ms. Chiann Bao began by expressing her pleasure at being part of the discussion and noted the significance of the gathering:
“We are so pleased to have so many of you here today to celebrate the 10-year anniversary of the codification of the IBA conflict of interest guidelines in the Indian Arbitration Act. I think that one of the inspirations of putting this event together was indeed the fact that India has been a thought leader in so many areas and the recognition of this is something that we wanted to celebrate. And so, we congratulate all of you for underscoring the importance of, as our keynote speaker said, the concept of trust in international arbitration.”
She explained that the IBA Arbitration Committee has long focused on ensuring an overarching structure of ethics and principles in arbitration, given that the system is largely self-regulating. The 2024 revision of the IBA Guidelines on Conflicts of Interest, she noted, is now the third iteration of a framework that started with a brief 1987 arbitrators’ ethics note and grew into the more comprehensive 2004 guidelines.
Key highlights from the 2024 revision included:
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Nature of the Guidelines
- They remain guidelines, not binding rules.
- Their role is to provide a framework for arbitrators and parties to understand duties, obligations, and relationships.
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Duty of Curiosity
- Beyond the arbitrator’s duty of disclosure, parties are now expected to exercise a “duty of curiosity.”
- When arbitrators disclose information, parties must assess and, if necessary, object. Silence or inaction shall deemed a waiver of objections.
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Corporate Structures
- The revisions acknowledge the complexity of modern corporate groups.
- While not demanding exhaustive disclosure, they encourage deeper consideration of multi-tiered corporate relationships.
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Arbitrators’ Duties
- The duty of disclosure continues to be central.
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The well-known “traffic light system” remains, updated with contemporary examples of relationships that may raise questions of conflict.
She concluded by framing the guidelines as part of a continuous evolution.
Ms. Ila Kapoor then turned to Justice A.K. Sikri with her next question:
“We’ve been talking about the Amendment Act introducing the Fifth and the Seventh Schedule, which are supposed to mirror the Orange and Red Lists under the IBA Guidelines. But in practice, based on your experience, how has this actually worked out? Has the way India has implemented these schedules played out as you might have envisaged?”
Justice Sikri observed that India’s approach to conflicts of interest can be traced through its own body of case law, a theme also underscored in Justice Viswanathan’s keynote. He pointed out that when the Arbitration and Conciliation Act was first enacted in 1996, it lacked any structured framework on these issues. Over the years, however, the law has matured, through successive amendments and judicial interpretation, bringing Indian practice closer in line with international standards, including the IBA Guidelines.
Justice Sikri explained that in India, anyone appointed or considered for appointment as an arbitrator is required to give a declaration confirming that there is no conflict of interest. While this statutory requirement ensures a basic safeguard of impartiality and independence, the real challenge lies in assessing how impartiality is to be judged and when a conflict truly arises. Initially, the Arbitration and Conciliation Act, 1996 did not provide any framework for such assessment, and it was only over time, particularly when arbitral awards were challenged on the ground of bias, that the need for structured guidance was recognised.
He noted that the Law Commission, in its comprehensive report, addressed this gap by recommending that India adopt an approach aligned with the IBA Guidelines on Conflicts of Interest, specifically referencing the “traffic light system” of red, orange, and green lists. This recommendation led to the incorporation of the Fifth and Seventh Schedules into the Arbitration Act. The Fifth Schedule, modeled on the orange list, sets out circumstances that may raise justifiable doubts as to an arbitrator’s independence, while the Seventh Schedule, aligned with the red list, identifies situations that amount to absolute ineligibility. The Supreme Court, he pointed out, has consistently affirmed this position, clarifying that matters falling within the Seventh Schedule are a matter of law and cannot be waived, while other disclosures under the Fifth Schedule may be assessed by the parties.
Justice Sikri referred to a series of judgments which elaborated on the standards of independence and impartiality. Courts have applied the test of “justifiable doubts” and the “likelihood of bias” test while interpreting these schedules, drawing from both domestic principles and the IBA Guidelines. He acknowledged, however, that differences in legal culture sometimes affect interpretation, for instance, while the IBA treats membership in the same chambers as raising conflict concerns, the Indian context is different, as chambers are not organised the same way here, and the law firm model requires a different analysis.
He also observed a peculiarity in India: unlike in many jurisdictions where practitioners often serve as arbitrators, a significant percentage of arbitrations, perhaps 60—70%,still see retired judges being appointed. While he personally believes that more advocates should also be considered, given that the pool of experienced arbitrators in India is still developing, this trend shapes how issues of conflict of interest play out in practice.
In conclusion, Justice Sikri stressed that India has substantially aligned itself with the IBA Guidelines through the Fifth and Seventh Schedules, and the judiciary has consistently interpreted them in that light, though certain contextual differences remain.
Mr. Dietmar Prager acknowledged that conflicts of interest are an inevitable and significant challenge in the practice of arbitration, particularly for practitioners in large firms. Reflecting on his own career, he noted that when he began working as an arbitrator nearly two decades ago, most of the matters he handled were smaller disputes, often below USD 5 million, involving parties that major firms typically did not represent. At that stage, conflicts of interest were rarely a concern.
However, as he progressed to larger and more complex cases, conflicts became a recurring obstacle. Nevertheless, Mr. Prager emphasised that this challenge has a positive side: it compels parties to broaden their search for arbitrators, thereby enriching the overall system. He underscored the need for greater diversity in international arbitration, both in terms of geographic representation, with many jurisdictions still severely underrepresented, and in terms of generational inclusion.
“I just thought it’s a very important topic and conflict of interest continues to be perhaps one of the most important topics in international arbitration to discuss, because they’re always, you know, we have to channel standards in the guidelines, we have the traffic light system, but in reality the facts are often very complex and the way you apply those principles against those facts is different in each case and that’s why I think it’s so important to continue to engage in discussions about the guidelines.”
– Mr. Dietmar Prager, Litigation Partner, Debevoise & Plimpton LLP
In his view, parties should not restrict their choices to partners from large international firms but should also consider younger practitioners and arbitrators from underrepresented regions, many of whom are deeply committed and eager to build their profiles in international arbitration.
Turning to Mr. Darius Khambata, Ms. Ila Kapoor highlighted a key distinction between the Arbitration and Conciliation Act, 1996 and the IBA Guidelines. She pointed out that while the IBA’s red list identifies certain conflicts as strictly non-waivable, the Indian statute, through Schedule 7, permits parties to waive such conflicts by mutual consent. She then posed the question of whether this legislative choice represents an overemphasis on party autonomy, potentially at the expense of ensuring arbitrator impartiality.
Mr.Khambata described the question as “very important,” noting that the proviso to Section 12(5) of the Arbitration and Conciliation Act allows parties to waive restrictions under Schedule 7, which render an arbitrator ineligible if falling within any of its categories. Significantly, some of these categories overlap with the IBA’s non-waivable red list. He explained that the Law Commission, after referring to the IBA’s red, orange, and green lists, recommended incorporating this waiver provision in deference to party autonomy. Two safeguards were built into the statute: the waiver must be in writing, and it can only be executed after a dispute has arisen.
Mr. Khambata observed that India was among the first jurisdictions to adopt the IBA traffic-light system into its legislation, and also the first to permit such a waiver. While this is a forward-looking provision that respects party autonomy, he acknowledged the tension it creates with another foundational principle of arbitration, ensuring complete independence and impartiality of arbitrators. In his view, allowing waiver in cases where the arbitrator or their family has a direct financial interest comes dangerously close to permitting a judge to adjudicate in matters where they themselves are interested, something that is unthinkable in the judicial system.
He suggested that while the waiver provision is progressive, the legislature may need to consider refining it to exclude certain non-waivable situations, such as those involving direct or family interests in the dispute’s outcome. At the same time, he stressed that the law does not impose a biased arbitrator upon parties, since the waiver is entirely a matter of mutual choice.
“So perhaps the legislature could think of tweaking this provision and not applying it to cases where the arbitrator has a direct interest or an interest through members of his family. But short of that, I think it’s a forward-looking provision. It respects party autonomy.”
– Mr. Darius Khambata, Senior Advocate
Drawing from his judicial experience, Mr. Khambata also pointed out that there may be rare contexts, such as family disputes, where all parties might deliberately prefer a person with an interest, for instance, the head of the family, to act as arbitrator. In such cases, the consensual nature of arbitration could justify the waiver, making the provision workable in practice.
Referring to the growing debate on the role of experts in arbitration, Ms. Ila pointed out a striking statistic from a survey (with its credibility open to examination): 25% of party appointed experts felt pressurized to change their report in a way that damages their impartiality by an instructing party. And 41% indicated that they have come across experts they consider to be hired guns.
Against this backdrop, she sought Mr. Montek Mayal’s perspective on the credibility and utility of party-appointed experts versus tribunal-appointed experts, recalling Justice Viswanathan’s earlier reflections on the subject.
Mr. Montek observed that the statistics cited were not surprising, and in fact, he suspected the actual figures might be even higher. He acknowledged that the core concern with party-appointed experts has always been the perception of bias and lack of independence, a longstanding issue in arbitral practice.
“I think perhaps the only thing I would say is, at least for the work I do in expert evidence, is there are many ways to make the process more efficient. I think parties need to engage with experts early in the case to make sure it’s aligned with the legal case. And I think experts can do better by engaging more thoroughly with experts on the other side, with the client’s own case and investigating that case more thoroughly.”
– Mr. Montek Mayal, Partner, Osborne Partners
He recalled that attempts had been made to address this challenge, such as the SIAC protocol introduced in 2008—09 but stressed that the problem persists. According to him, the biggest pitfall of party-appointed experts lies in the perception, if not the reality, of partiality.
Turning to possible solutions, Mr. Montek noted that while significant progress has been made in ensuring the independence of arbitrators and regulating counsel practices, experts remain largely unregulated. The existing framework is predominantly disclosure-based and lacks a comprehensive ethical code of conduct for experts. He suggested that introducing stronger ethical standards could help enhance trust in the process.
He pointed out that, in practice, most experts rely only on their professional qualifications or certifications rather than arbitration-specific regulations. Current guidelines are limited and focus more on disclosure than on the quality and integrity of expert work.
While not dismissing the use of party-appointed experts outright, Mr. Montek emphasised that the real value lies in improving existing practices rather than abandoning the system. Measures like “hot-tubbing” of experts and joint expert reports, as referenced by Justice Viswanathan, could serve as practical tools to mitigate concerns about partiality.
The discussion concluded on a note of cautious optimism. While challenges around conflicts of interest, impartiality, and expert independence continue to test the arbitral process, the panelists agreed that India’s adoption of global best practices, coupled with innovative legislative provisions, reflects a forward-looking approach. At the same time, the call for stronger ethical standards, broader diversity, and deeper transparency underscores that arbitration remains an evolving field. The session highlighted that striking the right balance between party autonomy and impartiality will shape the credibility and effectiveness of arbitration in the years to come.
