A Study On The Parties’ Disclosure Obligation In International Commercial Arbitration

In international commercial arbitration,the duty to disclose any conflict of interest generally rests with the arbitrator.In recent arbitration practice,however,the arbitral tribunals required the parties to disclose information about third party funding for the purpose of determining whether the relationship between the third-party funder and the arbitrator will create a conflict of interest.Yet with respect to conflicts of interest other than those relating to third-party funding,there are no specific rules or practices requiring the parties to disclose such information.By analyzing the relevant rules,it can be found that the scope of arbitrator’s disclosure obligation is determined by applying the perspective of the parties,while the determination of impartiality and independence of arbitrators adopts the “reasonable third person” standard.Generally,the former covers the latter.However,the abstract standards ignored the arbitrators’ actual abilities to investigate and discover conflicts.The scope of information that can be acknowledged or obtained by the arbitrators does not always meet the scope of their disclosure obligation.Through the analysis of relevant arbitration cases,it can be found that,in practice,an arbitrator may,after having fulfilled his/her duty of full disclosure,still have his/her arbitration award revoked,due to some subsequent discoveries of conflicts of interest of which he/she was unaware.The relevant courts have held that the arbitrators were obliged to make reasonable enquiries into the potential conflicts of interest.The disputed arbitrators were believed to have constructive knowledge of the relevant facts.In light of the foregoing,it is necessary to require the parties possessing relevant information relating to the potential conflict of interest to undertake the disclosure obligation in order to assist the arbitrators in completing the discovery and disclosure of conflicts of interest.In the earlier practice of international arbitration,the arbitral tribunal required the parties to make disclosure on the basis of its “inherent power” and its power to order the production of evidence.This approach is mainly applicable to the situation where the relevant facts have already been partly disclosed.Thereby the arbitral tribunal requires the parties to disclose such information upon application or upon duty.There are few examples of parties’ disclosure obligations being provided for in arbitration legislation.This may be because the parties’ disclosure obligations are auxiliary in nature.Except for cases of third-party funding,that kind of binding force is not required.Taking these regulatory practices into consider,this article proposes that the parties’ disclosure obligation be included in the arbitration rules generally,and that assistance be provided to the parties in fulfilling their disclosure obligation with the use of the arbitration institution’s relevant standard forms or procedural guidelines.After a party discloses information on its related parties,the entities which have controlling influence on it or will obtain or lose significant interests based on the outcome of the case,the arbitrator shall further disclose relevant information in light of the party’s disclosure,so as to adequately examine the conflict of interest.