Lisbon Court of Appeal | IBA Guidelines | Conflicts of Interest | 22-01-2019 | Case #086

Lisbon Court of Appeal

Date: 22-01-2019

Case Nr. 1574/18.5YRLSB.L1-7

LINK DGSI

Headlines:

The IBA Guidelines are American rules, unfit for the European rules, and are useful as any document on ethics, but the parties are not obliged to comply with them, much less the arbitrators.

In the Portuguese arbitration market, particularly in the field of highly specialized arbitrations, as is the case of pharmaceutical products, it is virtually impossible to appoint an experienced arbitrator who has had no relation to any of the parties.

 

Summary:

I – In the context of arbitration, the arbitrators’ duty of disclosure referred to in Art. 13 of the Portuguese Arbitration Law appears as the greatest tool to face the challenge of achieving impartiality and independence.

II – The most well-known rules concerning the independence requirements of arbitrators are the IBA Rules of Ethics for International Arbitrators and the Guidelines on Conflicts of Interest in International Arbitration.

III – The grounds to raise a challenge on the impartiality and independence of arbitrators should be serious and objective and cannot – and should not – constitute a pretext for more litigation and for acrimony among colleagues.

IV – The IBA Guidelines are soft law instruments. They were made and discussed in the US, and European commentators propose that they should be restrictively interpreted.

V – The IBA Guidelines are American rules, unfit for the European rules, and are useful as any document on ethics, but the parties are not obliged to comply with them, much less the arbitrators.

VI – The IBA Guidelines contain an orange list, which includes circumstances which, while not being impeding, may give rise to reasonable doubts and, therefore, should be disclosed, including professional relationship with one of the parties in the previous three years, services currently provided to one of the parties, affiliation to the office of another arbitrator or a lawyer in the proceedings, relationship with one of the parties or with persons involved in the proceedings.

VII – In respect of this orange list, the Guidelines themselves explain that the situations included therein depend on each concrete case, and the mere repetition of appointments is not sufficient evidence of lack of impartiality or independence. It is, thus, necessary to invoke a procedural or substantive conduct that shows such lack of independence or impartiality.

VIII – In the Portuguese arbitration market, particularly in the field of highly specialized arbitrations, as is the case of pharmaceutical products, it is virtually impossible to appoint an experienced arbitrator who has had no relation to any of the parties.