The Singapore Law Gazette

Ethics in International Arbitration as Practised (or not) in Singapore (Part 1)

Introduction

This is a 3-part essay on ethics in international Arbitration as practised in Singapore in theory and practice. The study will be divided into three sections:-

• Ethics of Arbitrators
• Ethics of Arbitration Counsel under the Legal Profession Act
• The Disciplinary Regime under the LPA and Conclusion

Part 1: Ethics of Arbitrators¹For a deeper insight into global approaches claims against arbitrators, see “Claims against arbitrators for breach of ethical duties” by Michael Hwang SC, Katie Chung and Jennifer Fong Lee Cheng in “Selected Essays on International Arbitration” (SIAC, 2013) at pp 304-372. While Section 25 of the International Arbitration Act and Section 20 of the Arbitration Act seem to give absolute immunity to Arbitrators, it is still arguable whether Arbitrators can be sued for failing to carry out their basic duties as Arbitrators in terms of egregious non-performance of such duties (e.g failing to disclose matters causing a conflict of interest or failing to deliver their awards even after multiple extensions of time) that result in the eventual removal of such Arbitrators from office, thereby causing extra expense to be incurred by Parties in having to (a) write off the costs and time spent on 6this arbitration and (b) commence fresh proceedings.

1. There are no duties imposed on Arbitrators to abide by specific ethical rules in the International Arbitration Act (“IAA”) or the Arbitration Act (“AA”).
2. The only provision in the IAA that addresses the ethical behaviour of Arbitrators is Section 25(which is identical to Section 20 of the AA) and provides:

25. An arbitrator shall not be liable for —

(a) negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and

(b) any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award.

3. Arbitral institutions are also immune from liability by virtue of Section 25A of the IAA (which is identical to Section 59 of the AA) as follows:

25A. –

1. The appointing authority, or an arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator, shall not be liable for anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith.
2. The appointing authority, or an arbitral or other institution or person by whom an arbitrator is appointed or nominated, shall not be liable, by reason only of having appointed or nominated the arbitrator, for anything done or omitted by the arbitrator, the arbitrator’s employees or agents in the discharge or purported discharge of the arbitrator’s functions as arbitrator.
3. This section applies to an employee or agent of the appointing authority or of an arbitral or other institution or person as it applies to the appointing authority, institution or person.

4. However, most Arbitral Institutions impose relatively strict ethical standards on Arbitrators appointed under their jurisdiction. By way of example, the Singapore International Arbitration Centre (“SIAC”) has had ethical rules in force for some time, and the latest version is the SIAC Code of Ethics for Arbitrators 2025 (“the SIAC 2025 Code”) which focuses on the main concerns about the ethics of Arbitrators (but not of Arbitration Counsel).
   1. The first concern is the impartiality and independence of an Arbitrator (which includes both the Presiding Arbitrator as well as the party-appointed Arbitrators). All members of the Tribunal, regardless of who appoints them, are subject to the same Code of Ethics.
   2. The SIAC 2025 Code does not provide a definition of impartiality and independence. However, paragraph 3.1 of the 2015 edition of the SIAC Code of Ethics provided as follows (and can presumably continue to be referred to for general guidance):
      

      The criteria for assessing questions relating to bias are impartiality and independence. Partiality arises when an arbitrator favours one of the parties or where he is prejudiced in relation to the subject matter of the dispute. Dependence arises from relationships between an arbitrator and one of the parties, or with someone closely connected with one of the parties.

3. In order to give transparency and to enable Parties to judge for themselves whether or not an Arbitrator may or may not be impartial or independent (nowadays there is also concern about his or her availability), it is important to understand the distinction between impartiality and independence. Impartiality means that the Arbitrator treats all parties equally and without fear or favour, i.e. this quality refers to an Arbitrator’s actual behaviour. Independence means that the Arbitrator is not beholden to any of the parties, whether directly or indirectly, i.e. this is an objective assessment of his/ her perceived independence and neutrality towards each party.
4. The concept of lack of independence requires a third party’s judgment on whether or not the Arbitrator has a professional or personal relationship with any of the Arbitrating Parties, which is so close as to give rise to justifiable doubts as to his/her independence. That concept requires evidence of a propensity to favour one side or another based on the nature of an Arbitrator’s present and recently held offices, rather than any actual conduct (which might attract the other test of impartiality).
5. Availability means that the Arbitrator must be able to declare that he/ she can devote attention to the Arbitration diligently and efficiently in accordance with the timelines prescribed by the SIAC Rules or notify SIAC of any time constraints (paragraphs 3.1 and 3.2 of the SIAC 2025 Code of Ethics).
6. Arbitrators are also expected to observe confidentiality, as they are considered to be in a relationship of trust to the Parties and should not use confidential information acquired during the course of the proceedings to gain personal advantage or advantage for others, or to adversely affect the interest of another (paragraph 6.1 of the SIAC Code of Ethics 2025).
7. The process for judging independence and impartiality requires each Arbitrator to have made a declaration, before confirmation, of any possible circumstances that may give rise to justifiable doubts as to his or her impartiality or independence.
8. Impartiality and independence are well known terms in International Arbitration and form the basis for testing an Arbitrator’s neutrality under nearly all standard arbitration rules. Against that background, guidance to the meanings of impartiality and independence can be found in paragraphs 2.1 and 3.1 where the touchstone test is stated as “justifiable doubts” about an Arbitrator’s impartiality or independence. General Standard (2) on Conflicts of Interest, paragraph (c), of the IBA Guidelines on Conflicts of Interest in International Arbitration 2024 (“the IBA Conflicts Guidelines 2024”) provides a useful test for “justifiable doubts”:
   

   Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching the arbitrator’s decision.

   This is the only official guideline on what amounts to justifiable doubts, and the word “likelihood” (which the Oxford English Dictionary defines as “probability”) emphasises that there must be a probability (as opposed to a possibility) of bias (my insight comes from being the principal author of this definition in the pioneer IBA Guidelines on this topic in 2004, when the first edition of these Guidelines were published).

9. Before being appointed, each potential Arbitrator may have ex parte communications relating to the arbitration with a Nominating Party or Party Representative only to:
   1. discuss the general nature of the dispute and of the anticipated proceedings; and
   2. discuss the candidate’s qualifications, availability or independence, in respect of the prospective appointment (paragraph 4.1 of the SIAC 2025 Code).
10. After appointment, each Party Appointed Arbitrator may have ex parte communications with his or her Appointing Party only to discuss a suitable candidate for the Presiding Arbitrator only when the Parties (or Party-Nominated Arbitrators) are in agreement that such a process shall take place (paragraph 4.1 of the SIAC 2025 Code). After the whole Tribunal has been constituted, no ex parte communications should take place between any Arbitrator and any of the Parties (paragraph 4.4 of the SIAC 2025 Code).
11. The Arbitrators are also bound by their duty of confidentiality not to disclose to outside Parties any confidential information (unless otherwise agreed by the Parties), including the existence of the Arbitration, anything that is submitted in writing during the arbitration, and the Tribunal’s Orders or Award(s) (paragraph 6.1 of the SIAC Code of Ethics 2025).

5. What are the sanctions for a breach of Arbitrator’s duties? These are set out in Rules 26 to 29 of the SIAC Rules 2025. In brief:
   1. Rule 26 provides that any Party can challenge an Arbitrator if:
      1. circumstances exist that give rise to justifiable doubts about the Arbitrator’s impartiality or independence;
      2. the Arbitrator does not possess any requisite qualification on which the parties have agreed; or
      3. the Arbitrator becomes de jure or de facto unable to perform his or her functions.
   2. Rule 29.1 provides that the challenge will be decided by the SIAC Court after considering the views of the Parties, the Challenged Arbitrator and the other Arbitrators, and the SIAC Court may remove the Arbitrator if:
      1. the Arbitrator has not complied with the SIAC Rules 2025, the SIAC 2025 Code or the Practice Notes for the time being in force; or
      2. the Arbitrator has not conducted, or participated in, the arbitration in a manner that ensures the fair, expeditious, and economical resolution of the dispute.
6. A question that sometimes arises is: what happens when one Arbitrator out of three “goes rogue” in the sense that he/she leaks information about the Tribunal’s thoughts and discloses them to one of the Parties (usually that Arbitrator’s appointing party)?
7. A not-so-well-known guide to that situation is given in the IBA Rules of Ethics for International Arbitrators 1987 (the “1987 IBA Rules”), which address, among other matters, an Arbitrator’s conduct in relation to acceptance of appointment, impartiality and independence, the duty of disclosure, communications with the Parties, and confidentiality of the deliberations. Rule 9 expressly prohibits Tribunal members from disclosing the Tribunal’s deliberations or the contents of the award, which remain confidential in perpetuity, unless the Parties agree otherwise. The exception arises when an Arbitrator considers it his or her duty to disclose any material misconduct or fraud by a fellow Arbitrator.
8. Rule 5.4 of the 1987 IBA Rules provides that, if an Arbitrator becomes aware that a fellow Arbitrator has been in improper communication with a Party, he/she may inform the remaining Arbitrators, and they should together determine what action should be taken. In this regard, Rule 5.4 states that:
   

   Normally, the appropriate initial course of action is for the offending arbitrator to be requested to refrain from making any further improper communications with the party. Where the offending arbitrator fails or refuses to refrain from improper communications, the remaining arbitrators may inform the innocent party²i.e., the party which has not been the recipient of the leak. in order that he may consider what action he should take. An arbitrator may act unilaterally to inform a party of the conduct of another arbitrator in order to allow the said party to consider a challenge of the offending arbitrator only in extreme circumstances, and after communicating his intention to his fellow arbitrators in writing.

9. Although large parts of the 1987 IBA Rules have been revoked or effectively replaced by successive editions of the IBA Guidelines on Conflicts of Interest in International Arbitration (2004, 2014 and 2024), Rule 5.4 of the 1987 IBA Rules still remains in place and can provide a useful guide as to how the two innocent arbitrators should behave should the third tribunal member “go rogue”. As made clear in the Introduction section of both the 2014 and 2024 editions of the IBA Guidelines, at paragraph 8:
   

   In 1987, the IBA published Rules of Ethics for International Arbitrators. Those Rules cover more topics than these Guidelines, and they remain in effect as to subjects that are not discussed in the Guidelines. The Guidelines supersede the Rules of Ethics as to the matters treated here. (emphasis added)

10. However, it is important to note that the Introductory Note to the 1987 IBA Rules states:-
    

    “The rules cannot be directly binding either on arbitrators or on the parties themselves, unless they are adopted by agreement”.

11. Nevertheless, it would be relatively simple for Parties to an International Arbitration to include by consent an order that the tribunal could adopt the 1987 IBA Rules by consent of both (or all) Parties in the following terms:-
    

    “The tribunal will be bound [or alternatively] guided but not bound by Rule 5.4 of the “IBA Rules of Ethics for International Arbitrators 1987”.

    This is a formula often used for tribunals in adopting the “IBA Rules on the Taking of Evidence in International Arbitration 2020”.

12. The next part of this 3-part essay will deal with “Counsel Ethics in International Arbitration” and will be published in the next edition of this Gazette.