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Judicial approaches to the IBA guidelines on conflicts of interest in international arbitration

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journal contribution
posted on 26.11.2018, 15:20 by Masood Ahmed
This paper seeks to close the gap in the research surrounding the IBA Guidelines by critically considering how national courts actually perceive and utilise the IBA Guidelines during the decision making process when determining conflicts applications. Through a doctrinal analysis of case law from various jurisdictions, this paper reveals the existence of two distinct judicial approaches. The first approach places heavy reliance on the IBA Guidelines and, as a result, they form an integral part of the adjudicative process. The second approach utilises the IBA Guidelines merely as a guide, a point of reference and a means of simply reinforcing judicial reasoning. It will be argued that the first judicial approach is highly unsatisfactory both from a legal and policy perspective. It will be argued that the second approach is to be desired because it remains consistent with the aims of the IBA Guidelines and it has enabled the courts to identify inherent weaknesses in the IBA Guidelines. Finally, recommendations for reforming aspects of the IBA Guidelines will be made in order that they may continue to be a source of guidance and assistance to the arbitration community and national courts.

Funding

This paper was completed during a period of study leave granted by the University of Leicester

History

Citation

European Business Law Review, 2017, 28 (5), pp. 649-666

Author affiliation

/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law School

Version

AM (Accepted Manuscript)

Published in

European Business Law Review

Publisher

Kluwer Law International

issn

0959-6941

eissn

1875-841X

Copyright date

2017

Available date

26/11/2018

Publisher version

https://www.kluwerlawonline.com/abstract.php?area=Journals&id=EULR2017032

Language

en

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