Parties may object to an arbitrator on the basis of a potential conflict of interest, where they have knowledge of the potential conflict and where they raise the objection in a timely manner. While it is widely accepted that ‘knowledge’ in this context encompasses constructive knowledge, there remains some debate as to how ‘constructive knowledge’ should be defined and applied. This paper examines these issues within the broader discussion on the scope of parties’‘duty of curiosity’, that is the extent to which parties are required to actively investigate an arbitrator’s independence and impartiality beyond what an arbitrator discloses. In particular, the paper analyses these questions through the lens of the introduction of the ‘duty of curiosity’ in the IBA Guidelines on Conflicts of Interest in International Arbitration 2024.
The paper begins with the limits of the duty of disclosure on arbitrators, which in turn warrants the imposition of the duty of curiosity on parties and then proceeds to trace the development and application of the parties’ diligence obligations, finding that the duty of curiosity extends to such information that is readily accessible (notorious, even). The paper proceeds to attempt to reconcile points of tension between the competing but complementary duties of disclosure and curiosity, concluding that: (1) the arbitrator’s duty of disclosure is paramount, (2) the duty of curiosity provides consequences for parties’ bad faith actions which aim at gaming any gaps in disclosure; and (3) the standard for duty of curiosity must be aligned with the high threshold for waiver. The paper concludes with a practical guide on discharging the duty of curiosity.
Asian International Arbitration Journal