In International Arbitration, Disclosure Rules at the Place of Enforcement Matter Too

Abstract

Examination of the strict disclosure standards under the Code of Ethics for Arbitrators in Commercial Disputes and the more lenient conflict-of-interest guidelines promulgated by the International Bar Association, particularly in light of the Fifth Circuit decisions in Positive Software Solutions v. New Century Mortgage Corp. The author discusses the dangers facing international arbitrators who only consider the disclosure standard applicable at the seat of an international arbitration. The author advocates following the disclosure standards in jurisdictions where the award might be enforced, if those standards are more stringent, in order to avoid having the award challenged on non-disclosure grounds in the enforcing jurisdiction.

Keywords: arbitration, disclosure, seat of arbitration, place of enforcement, Positive Software Solutions

JEL Classification: K40, K41