INTERNATIONAL BAR ASSOCIATION (IBA) GUIDELINES ON CONFLICT OF INTEREST IN INTERNATIONAL ARBITRATION AND AFRICAN SYSTEMS: ANOTHER LOOK

Abstract

This paper critically examines the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration and interrogates their application within African arbitral systems. Its central objective assesses whether the IBA’s universal framework adequately reflects the legal, institutional, and cultural realities that underpin arbitration practice across African jurisdictions. The paper defines conflict of interest as any circumstance capable of undermining the impartiality or independence of arbitrators and other key actors in arbitral proceedings. It emphasizes the fundamental role of disclosure as a continuing obligation necessary to safeguard the integrity and legitimacy of arbitration, noting that failure to disclose may result in the removal of arbitrators or the setting aside of arbitral awards. It proceeds to provide a detailed analysis of the IBA Guidelines, tracing their development from 2004 to the 2024 revision, and highlighting their twofold structure: general standards on impartiality, independence, and disclosure, and practical application through the Red, Orange, and Green lists of conflict scenarios. While acknowledging the normative value of the IBA Guidelines, the paper evaluates their application within African contexts. It examines how African systems regulate conflicts of interest through a combination of international instruments, domestic legislation, and institutional practices. The paper argues that, although broadly aligned with international standards, African arbitration practice places greater emphasis on party autonomy and the trust reposed in arbitrators by disputing parties. It critiques the IBA’s reliance on the “reasonable third-party” standard as potentially restrictive and concludes by advocating a more flexible, context-sensitive approach while accommodating African legal and cultural peculiarities.