Conflicts of Interests: Navigating in the Fog

Abstract

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.