The conflict within: Ethics, conflict and the arbitration practitioner

When we speak of conflict in arbitration, we speak almost exclusively of the conflict between parties. The competing claims, the disputed facts, the divergent legal positions that bring the process into existence. That conversation is necessary and well-developed.

There is another conflict that receives far less attention. It does not appear in the pleadings or the procedural timetable. It is not resolved by the award. It exists inside the practitioner i.e. in the space between what the professional standard requires and what professional convenience makes tempting. It arises at appointment, at disclosure, in the deliberation room and at the counsel's table. It is the conflict that determines, more than any other, what international arbitration actually delivers to the parties who depend on it.

That conflict is what this piece is about.

Every experienced arbitration practitioner has encountered the appointment that sits in a grey zone. The relationship with the appointing party's counsel is old, professionally distant and probably immaterial. The prior instruction from a related entity concluded years ago without controversy. The published article that touched on the legal issue in question was academic, balanced and written before the dispute existed. None of these, individually, would trouble a reasonable observer. Together, or in a specific factual context, they might.

The internal conflict at that moment is real and it is rarely described honestly. On one side sits the professional opportunity, i.e. a significant appointment, a substantial matter, a case that fits squarely within the practitioner's expertise. On the other sits the more fundamental question: can I approach this dispute with the quality of open mind that these parties are entitled to expect from me?

That question is more demanding than anything the IBA Guidelines require. The Guidelines provide a framework of categories such as relationships that must be disclosed, relationships that may require disclosure, and relationships that present no issue. They are carefully constructed and very useful. But they address the observable dimensions of conflict. They cannot reach the internal one.

The internal conflict at appointment is between honest self-knowledge and professional appetite. An arbitrator who accepts an appointment having silently concluded that the answer to the open-mind question is uncertain has not violated any rule. They have made a choice and the choice they have made is about themselves, not about the guidelines.

Disclosure in arbitration has a technical dimension and a principled one. The technical dimension is well-managed. Practitioners know the lists, understand the categories, and make the required disclosures with reasonable consistency across major institutional proceedings. The principled dimension is where the internal conflict lives.

The principle behind disclosure is not procedural compliance. It is the party's right to make an informed decision about the constitution of the tribunal that will determine their dispute. A practitioner who genuinely understands that principle will disclose not what the list requires but what a reasonable party would want to know. Those are not always the same thing.

The conflict arises in the gap between them. The relationship that falls below the Orange List threshold but which, if known, a party might reasonably consider relevant. The new instruction received from a party-connected entity mid-proceedings, assessed privately as immaterial and left undisclosed because the proceedings are advanced and the moment feels awkward. The professional connection that has genuinely lapsed but which a party, knowing of it, might view differently than the arbitrator does.

In each of these situations the practitioner faces a choice between the minimum the framework requires and the maximum that the principle demands. The conflict is between professional comfort and genuine transparency, and it is resolved, in practice, differently by different practitioners in ways that are invisible to the parties whose interests the resolution affects.

Disclosure is not a threshold. It is a continuous obligation. The drift from that standard is one of the most consequential ethics failures in international arbitration precisely because it is the least visible one.

The conflict that an arbitrator carries into the deliberation room is different in character from the ones that precede it. By the time the hearing has closed and the record is complete, the appointment is made and the disclosures are either given or not. What remains is the obligation to decide and the conflict that obligation creates is between the award the record actually supports and the award that is, for any number of reasons, easier to produce.

The easier award takes different forms in different cases. It is the award that follows the reasoning of a previous case involving similar facts without genuine engagement with this record. It is the award that reaches a defensible conclusion by a route that does not reflect the actual basis of the decision. It is the award written toward a conclusion formed before the submissions were fully read, with reasoning constructed retrospectively to support it. None of these produces an award that is obviously wrong. But the arbitrator knows whether the award reflects proper application of mind to this dispute or a competent performance of that application.

I have sat as arbitrator across disputes of significant value and complexity. What that experience has taught me, more clearly than anything else, is that the obligation to decide this case with this record, these witnesses, these submissions, this specific constellation of facts resists the natural pull toward the familiar and the confirmatory. Resisting that pull is not a quality standard. It is an ethical one. The conflict between engagement and convenient conclusion is the most private in the entire process. It is also the most consequential.

The ethics of arbitration is disproportionately discussed as an arbitrator's concern. The counsel's chair carries obligations that are equally serious and considerably less examined.

The conflict that counsel navigates in international arbitration is structural. They owe duties to their client that are robust, personal and commercially significant. They owe duties to the tribunal and through the tribunal to the process that are independent of those client obligations and do not yield to them. When the two sets of duties point in the same direction, the conflict is invisible. When they diverge, it becomes the defining ethical test of the representation.

That divergence takes forms that practitioners recognise and rarely describe candidly. The legal authority that is adverse to the client's position and known to counsel but absent from the submissions. The characterisation of witness evidence that is forensically effective, but that the transcript, read carefully, does not fully support. The procedural application made not because it has genuine merit but because its pursuit imposes cost and delay on the other side. The framing of a contested legal test as settled when counsel knows that it is not.

None of these requires a conscious decision to deceive. They emerge from the pressure of instructions, the momentum of adversarial proceedings, and the professional culture that rewards effective advocacy without always distinguishing it from candid advocacy. But they are choices and the framework of international arbitration makes those choices more consequential than they would be in a supervised court environment.

The conflicts I have described at appointment, in disclosure, in the deliberation room, at the counsel's table, share a common architecture. Each one presents a choice between what is professionally convenient and what the process genuinely requires. Each one is resolved, in the moment, by the individual practitioner without institutional oversight, without external accountability, and usually without any consequence attaching to either choice in the short term. That is why they are the ethics of arbitration that actually matter.

Ethics in arbitration is not a compliance exercise or a conference topic. It is the answer that each practitioner gives, alone, to the conflict that the process places before them. What they do with that conflict is the professional record that endures.

About the author: Dr. Mahmood Hussain is the Founding Partner of M&CO Legal.