Beyond Arbitrators: Should Arbitration Court Members have the same standards of Conflict of Interest as Arbitrators?

In the world of arbitration, much has already been discussed and written on arbitrators’ conflicts of interest i.e. their past connections, who they’ve worked with previously and the dire need of independence and impartiality. But what about the unseen arbitration court members who appoint or remove arbitrators and are instrumental in composition of the tribunal? Court members play a vital role, yet their conflicts of interest remain largely unregulated. Many arbitral institutions require arbitrators to disclose relationships and potential conflicts yet the same standard of transparency is not required from their court members.

Concerns around transparency, consistency in disclosure practices, and potential conflicts of interest among arbitration court members are becoming increasingly relevant in today’s arbitration landscape. While these issues may not always receive the attention they deserve, their impact on the legitimacy and perceived fairness of international arbitration cannot be understated. Especially with the rise of transparency and accountability in international arbitration, ignoring this can undermine the legitimacy and fairness of the arbitration process itself. This article examines why aligning standards for court members with those for arbitrators is essential to safeguarding institutional legitimacy.

In the current landscape of international arbitration, Courts of Arbitration within major arbitral institutions play a pivotal role that extends beyond administrative support. These responsibilities typically include:

1. Appointing arbitrators when parties are unable to agree on a nomination, thereby ensuring the continuity and neutrality of the proceedings.

2. Deciding on challenges to arbitrators in cases alleging bias, lack of independence, or conflicts of interest.

3. Consolidating related arbitrations and resolving jurisdictional questions to promote procedural efficiency and avoid contradictory outcomes.

4. Scrutinising draft arbitral awards before issuance—an essential quality-control mechanism aimed at ensuring consistency with institutional standards, clarity of reasoning, and enforceability.

5. Interpreting institutional rules, particularly in novel or contentious procedural scenarios, to guide tribunals and parties in line with the institution's framework and policy objectives. 

While the Court of Arbitration is not a judicial body in the conventional sense, it performs a vital administrative and supervisory function that significantly shapes the conduct and integrity of arbitral proceedings. Despite this influence, few institutions have formal policies requiring court members to disclose potential conflicts, and decisions are often made without public explanation or review. In fact, some institutions operate without any mechanisms to systematically review, audit, or explain the rationale behind Court decisions.  In the absence of a robust and transparent governance structure, even well-intentioned courts may find themselves vulnerable to allegations of bias, inconsistency, or lack of transparency.

Recent controversies highlight systemic vulnerabilities:

• In the Jordan Chiles CAS dispute, questions arose over whether an arbitrator representing a country could impartially judge a case involving its athlete.

• In Eiser v Spain, an ICSID tribunal’s annulment marked the first time a decision was overturned due to improper tribunal constitution and procedural irregularities.

There have also been instances where the Court members have appointed or evaluated peers who later sit with them as arbitrators. Such cases underscore how even unintentional undisclosed relationships can erode trust.

For the said reason, following questions warrant careful examination and discussion:

a) Should court members be subject to “Green, Orange, and Red List”-style standards?

b) Should arbitral institutions also maintain formal conflict registers for court members just like law firms?

c) Should challenges, if any, concerning Court members be anonymized and published to promote accountability and deter perceived biases?

d) Is there merit in developing a standardized model disclosure protocol for Court members, encompassing prior professional engagements (e.g., party relationships, co-counsel records, academic collaborations, and arbitral appointments)?

This Article presents a series of proposals intended to contribute constructively to the ongoing dialogue around enhancing transparency and trust in international arbitration. The focus lies on a frequently underexplored area: the disclosure and conflict of interest obligations of Court of Arbitration members. The intent is not to criticize any institution or individual many of whom have long demonstrated a strong commitment to transparency and ethical standards but rather to offer thoughtful reflection on how existing practices might be strengthened.

While the members of arbitral courts are widely recognized for their integrity and professionalism, factors that greatly mitigate the risk of actual conflicts, there remains an opportunity to improve the governance framework through clearer policies, consistent disclosure protocols, and greater institutional transparency. The proposals set forth in this Article are offered with the recognition that views may differ and that the path to improvement is inherently collaborative. The aim is to inspire measured and forward-looking discussions among stakeholders, guided by shared values of fairness, consistency, and procedural integrity.

The following recommendations are offered as a practical framework for strengthening the governance of arbitral courts and enhancing the institutional legitimacy of international arbitration:

1. Publication of Conflict of Interest and Disclosure Policies: Institutions should publish comprehensive policies outlining how conflicts of interest are assessed, how disclosures are managed, and the procedures applicable to challenges. Reliance on unpublished internal guidelines undermines consistency and transparency. Publicly accessible policies would:

• Clarify expectations for court members and parties.

• Enable cross-institutional benchmarking.

• Reduce perceptions of arbitrariness.

Policies should specify disclosure thresholds, recusal procedures, applicable standards, timelines, and standardized forms.

2. Public Registry of Court Member Disclosures: A regularly updated, non-confidential registry of court members’ public disclosures such as prior appointments, affiliations, and relevant speaking engagements, can serve as a dynamic record of relationships. This allows arbitration users to conduct informed oversight and bolsters institutional credibility.

3. Independent Oversight or Ethics Committees: Establishing independent ethics committees composed of senior jurists, academics, and user representatives would:

• Provide guidance on complex disclosure matters.

• Review contested challenges.

• Audit decision-making and appointment processes.

This independent review structure enhances trust and ensures procedural fairness.

4. Transparent Appointment and Rotation Practices: Institutions should disclose the criteria for court appointments including legal qualifications, regional and gender representation, and term limits. Transparent rotation policies ensure:

• Wider access to court service.

• Protection against institutional capture.

• Tangible progress toward diversity goals.

5. Commitment to Diversity and Inclusion: Diverse courts foster legitimacy. Institutions should:

• Publish demographic and regional diversity metrics.

• Set internal benchmarks.

• Regularly review and report progress.

6. Feedback and Accountability Mechanisms: Anonymous feedback mechanisms allow parties to share their experiences regarding fairness and court member conduct. Aggregated data can guide institutional reforms, training, and policy evolution without breaching confidentiality.

7. Annual Governance and Transparency Reports: Institutions should issue annual reports, similar to corporate governance disclosures, covering:

• Court appointments and composition.

• Conflict disclosures and challenge outcomes.

• Reform initiatives and ethical updates.

The inclusion of anonymized, reasoned challenge decisions would promote consistency and inform best practices.

8. Using AI for Conflict Screening and Decision Support: Institutions should use AI tools to detect conflicts. These tools can analyze public data arbitration records, directories, and digital footprints to:

• Identify indirect relationships or repeat appointments.

• Flag potential concerns before appointments are finalized.

• Ensure systematic, bias-free screening aligned with institutional thresholds.

While AI enhances efficiency and precision, final determinations should always remain with human decision makers to preserve contextual judgment and fairness.

Over time, such a corpus of jurisprudence could form a valuable body of soft law, similar in function to judicial precedent, helping to harmonize global arbitral practice. Together, these measures lay the foundation for a modern, accountable, and globally respected system of arbitral court governance. They aim not to criticize existing practices but to promote constructive reform that aligns with international expectations of fairness, transparency, and institutional integrity.

Introducing such practices in the Courts of Arbitration could very well increase the confidence of the users and enhance the legitimacy of the system that they are supposed to defend. When demand for transparency and neutrality is on the rise, institutional accountability must start with the people at the helm. The quality of an arbitration rests not just on the arbitrator’s competence, but on the decision of the court members who appoint them. At the end of the day, fairness in arbitration depends not only on those sitting at the stage but also on those who set the stage.

Dr. Mahmood Hussain is the Founding Partner at M&CO Legal.

This article is written and published in the author’s personal capacity and does not necessarily represent the views of any organization with which the author may be associated.