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Conflicts of Interests: Navigating in the Fog

  • Hélène Ruiz Fabri (a1)

Extract

The issue of conflicts of interests has for a long time only been mentioned in passing in relation to recusals of international judges or arbitrators. It now attracts increasing attention, which has two facets. The first one is of normalcy: the exponential growth of international adjudication over the last three decades has turned issues that were previously rather marginal—with few rules, mostly self-regulation, and little institutionalization—into systemic issues. The other dimension is pathological: the feeling that the issue is not properly addressed contributes to the climate of mistrust around international adjudication. More generally, the topic of conflicts of interests turns out to be constantly torn between opposite poles, such as integrity versus quality. These dialectic tensions, which challenge the concept of what makes a good judge or arbitrator, pervade the perception of conflicts of interests as well as their identification and management. Conflicts of interests are an inherently ambiguous issue and exist in a gray zone. The complexity of this phenomenon requires both fine-tuned and rigorous regulation through the use of an array of tools and reforms.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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2 Mavrommatis Palestine Concessions (Greece v. Great Britain), 1924 P.C.I.J (ser. A) No. 2, at 11 (“A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.”).

4 Marko Milanovic, Danish Judge Blasts ICTY President, EJIL: Talk! (June 13, 2013).

5 On role bifurcation creating concerns, see Malcolm Langford et al., The Ethics and Empirics of Double Hatting, 6:7 ESIL Reflections (2017).

6 Devas v. India, PCA Case No. 2013-09, Decition on the Respondent's Challenge to Hon. Marc Laronde and Prof. Francisco Orrego Vicuña, para. 58 (Sep. 30, 2013).

7 Prosecutor v. Furundzija, Case No. IT-95-17/1-A 99, Judgment, para. 189 (Int'l Crim. Trib. for the Former Yugoslavia July 21, 2000).

9 Anne Peters, Managing Conflict of Interest: Lessons from Multiple Disciplines and Settings, in Conflict of Interest in Global, Public and Corporate Governance 357, 370 (Anne Peters & Lukas Handschin eds., 2012).

10 Int'l Crim. Ct., Code of Judicial Ethics.

12 This idea is stated in the Post-Employment Guidelines issued by the Appellate Body of the WTO, World Trade Org. Appellate Body, Post-Employment Guidelines, WT/AB/22 (Apr. 16, 2014).

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