Advance Waivers of Arbitrator Conflicts of Interest in International Commercial Arbitrations Seated in New York

SUMMARY 

The International Commercial Disputes Committee (Joseph E. Neuhaus, Chair) issued a report on the use of advance waivers of arbitrator conflicts in international commercial arbitrations seated in New York. The committee notes that, although international arbitrators often seek advance waivers of potential conflicts of interest, there is little available guidance concerning the validity and enforceability of such waivers. Without opining as to whether advance waivers of such conflicts should or should not be used, the report discusses the law and practices with respect to advance waivers, including (i) rationales sometimes given for and against the use of advance waivers; (ii) the standards of impartiality, independence, and disclosure in international arbitration; (iii) some comments on the applicability of lawyer ethics rules and arbitrator ethics guidelines to advance waivers; (iv) practices of the major international arbitration institutions with respect to advance waivers; and (v) consideration of advance waivers in New York courts. It also provides some considerations for arbitrators and counsel when drafting advance waivers or advising clients as to the advisability of consenting to such waivers.