Generally speaking (a) conflicts of interest arise where the interests of two or more must be served and cannot be without actual or potential conflict (arbitrator conflict is briefly considered below), and (b) apparent bias is when a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal, or a specific member, lacked demonstrable independence and impartiality.
Arbitrator Conflicts: Questions of conflict are particularly acute in the field of arbitration for, unlike judges, arbitrators often remain in commercial practice and have commercial relationships. Indeed, that can be a reason for selecting particular arbitrators. The principles of judicial conflict are not limited to judges: they apply to any decision-making tribunal, and thus will include arbitrators. Properly analysed, this is usually an issue of apparent bias rather than conflict of interest, and the principles are different, the phrase conflict is, however, often used.
Conflict Check is essentially a portal for the exchange of information. That information enables informed decisions to be made as to whether a party consents to and waives such connections as members of the tribunal might have, or, whether in light of the available information, the party wishes to object. All this can be done at an early stage, when changes to the constitution of the tribunal can be readily accomplished, and on a continuing basis as connections are made e.g. an expert instructed.
It is apparent that unsuccessful parties (especially unsuccessful respondents) look to either challenge or set aside the award or resist enforcement. An easy route to this is undisclosed connections that a member of the tribunal might have. The consequence of either is certainly considerable legal expense, uncertainty, risk and potentially no award or an unenforceable award. See the specimen cases listed below (the costs of the challenge alone justify minimising the risk).
The tribunal can only search against disclosed information. The tribunal cannot be expected to know e.g. that a client with a wholly different name is affiliated with a party – whereas the party will know its affiliates; and a party will know its counsel, witnesses, funder etc. against which the tribunal can search for commercial, family or personal connections.
Conflict Check has designed the system with security and the protection of confidence, in mind. Conflict Check is a cloud based system equiped with the latest security standards. In addition to comprehensive server side firewalls and SSL Security certification all data is stored with 128-bit AES (Advanced Encryption Standard ) then cryptographically hashed. All passwords are hashed with a site key, plus a unique salt key.
The parties and the tribunal alone have access to the materials on the relevant pages of the site. In the event that technical support is required, our support team have signed extensive NDAs. The management of Conflict Check have no access to active or historical pages of the site.
No. The site provides information upon which professional advice must be obtained. There are too many possibilities to contemplate and the existence of a 'conflict' situation is often a question of judgment.
No. There are too many possible situations that might be thought to amount to a conflict of interest or the appearance of bias to guarantee to cover them all. The questions on the website and the use of free text boxes to enable disclosures seeks to address most possibilities and it is hoped that voluntary disclosures might be made consistent with the spirit of the questions asked. Professional advice outwith the website, perhaps with further specific information exchanged, should then enable a judgment to be made.
1) Conflict Check assists in managing the risk of an unenforceable award due to the Tribunal having had a 'conflict'.
2) Conflict Check assists in managing the risk of a challenge to an award due to the Tribunal being alleged to have had a 'conflict'.
3) Conflict Check helps flush out connections that members of a tribunal have that might be, or be alleged to be, a 'conflict' which might be accepted by informed consent or result in resignation or removal at an early stage.
4) Conflict Check offers a logical and comprehensive platform to record and assess conflict risk for even the most complex cases.
5) Conflict Check is secure and always available from any global location using just a web browser.
99.9% Uptime Fully encrypted site with data stored with 128-bit AES
and cryptographically hashed Designed by a lawyer for law firms
