When in Doubt, Disclose: Resolving an Arbitrator's Dilemma Under the 2026 ICC Rules of Arbitration

The newly introduced International Chamber of Commerce (“ICC”) 2026 Arbitration Rules (“2026 ICC Rules”, already discussed here) clear the air about 'whether to disclose' by imposing an unambiguous duty on arbitrators to disclose relationships or circumstances falling short of a conflict, overriding any subjective doubts held by the arbitrator. Article 12(2) gives an institutional backing to that principle, plugging the procedural gap which institutions have long circled about.

There has always been a grey zone in which an arbitrator, confronting a relationship or fact that falls short of an obvious conflict, retained some leeway to conclude, subjectively, that disclosure was unnecessary. That leeway is the breeding ground of non-disclosure, whether inadvertent or strategic, being the point that is toughest for an institution to identify and correct once it surfaces. The real question is what change Article 12(2) brings: whether it merely re-inscribes an already existing common practice, or pushes disclosure commitments to the point of impracticality.

Non-Affiliated Entities and the Grey Zone of Disclosure

Arbitrator impartiality is the hallmark of arbitral proceedings. Unlike national courts, where judicial independence is secured through institutional tenure, salary protection, and constitutional guarantees, arbitration derives its legitimacy almost entirely from the perceived impartiality and independence of the arbitrators. Such impartiality is guaranteed through thorough disclosures by the arbitrators regarding their relationships with the parties. The importance of such disclosure does not end at bringing forth the ongoing relationships with the parties; it also brings into context prior relationships.

Parties can challenge arbitrators if there are certain justifiable doubts arising with regard to their impartiality or independence. There may be certain instances when an entity is not a party to the dispute and cannot be said to be an affiliate of any party, despite the entity being relevant to the core of the dispute. As a result, an arbitrator might improperly withhold disclosure of relevant facts or circumstances under the guise of subjective doubt, thereby circumventing mandatory transparency requirements without penalty.

Now, if the same is discovered after the appointment of the arbitrator, the procedural gap may be filled by filing a curative disclosure, following which the same procedure of challenging the appointment is followed. However, if the non-disclosure is intentional, this leads to a waste of time and resources for the parties, and goes against the speedy disposal of disputes.

Tracing the Doubt Standard from IBA Guidance to ICC Mandate

General Standard 3(a) of the International Bar Association (“IBA”) Guidelines on Conflicts of Interest in International Arbitration provides that arbitrators shall disclose facts or circumstances that may give rise to doubts as to their impartiality or independence, with its explanation stating that doubts should be resolved in favour of disclosure.

The IBA's framework operationalises this through three lists. The Red List identifies relationships that either cannot be waived (Non-Waivable Red) or require disclosure and express party consent (Waivable Red). The Orange List identifies circumstances that may give rise to justifiable doubts and therefore require disclosure. The Green List identifies circumstances that need not be disclosed because they objectively present no concerns. The Orange List is where the doubt standard becomes relevant, primarily including those relationships that fall short of outright conflicts but create ambiguity.

The ICC Rules prior to 2026 imposed an objective, externally assessed disclosure obligation. Article 11(2) of the 2021 ICC Arbitration Rules required prospective arbitrators to disclose any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties. The 2026 amendment supplements this standard by taking into consideration the scenario when the arbitrator's own conscience raises a doubt.

It has been held in Halliburton Co v Chubb Bermuda Insurance that the duty of disclosure is governed by an objective test, whether a fair-minded and informed observer would conclude there was a real possibility of bias. It is often said that excessive disclosure requirements could deter qualified arbitrators, a warning that is yet to be navigated completely. To address this concern without imposing unnecessarily far-stretched disclosure obligations, the 2026 ICC Rules require each party to submit a list of relevant persons and entities that prospective arbitrators should take into account when assessing potential conflicts, along with the reasons for their inclusion. However, undue expansion of disclosure to the point of making arbitration impractical is a concern that should also be addressed while making a constructive interpretation of the arbitration rules. Additionally, the disclosure obligations cannot be over-ridden since arbitration is a party-centric forum and the confidence of parties in the open-mindedness of the arbitrator is fundamental.

The Purpose and Interpretation of Article 12(2)

Analytically, there are three possible readings of the current situation:

As per the first reading, the new rule changes nothing of substance, i.e., arbitrators applying the IBA Guidelines were already applying the Doubt Standard, and the ICC’s contribution is cosmetic. An ethically ideal arbitrator already applying the IBA Guidelines in good faith was effectively doing what Article 12(2) now mandates, resolving the uncertainty in favour of disclosure. On this view, the amendment's primary value is declaratory and not operative.

The second reading seems analytically promising and treats Article 12(2) as complementary to the existing objective test. It adds a crucial tiebreaker: when the arbitrator’s own conscience raises a doubt that the objective test might not definitively resolve, the best way to deal with it is to disclose. The existing grey zone, as discussed, is a situation where reasonable external observers might disagree. In such cases, the objective test provides no clear answer, and the arbitrator is left to judgment. Before 2026, an arbitrator in the grey zone could have resolved that judgment against disclosure, concluding that no reasonable party would find the situation ideal to disclose. Article 12(2) forecloses that resolution. If an arbitrator registers even the slightest subjective doubt, the institutional directive is unambiguous: disclosure is mandatory.

The third reading, which should be resisted, treats Article 12(2) as lowering the threshold for disclosure to the point where almost anything must be disclosed. The article does not mandate disclosure of everything, but only where the arbitrator has a justifiable doubt. But two adverse consequences follow from this reading.

First, experienced arbitrators have extensive professional networks. In specialised arbitrations like sports arbitrations, it is common that the arbitrator would have shared a common platform with the entity in question or would have made comments on the subject matter. It should be acknowledged that such specialist arbitrators exist in a small world and to disclose every single circumstance would impose a heavy burden on such arbitrators. When the burden is not on the arbitrators, it is borne in the end by the parties, who must exercise a continuous duty of curiosity. However, duty of curiosity itself can only be applied where the contentious information is publicly available and very easily accessible. This may lead to inefficiency, making this burden on the parties undesirable. 

Second, in contemporary times with the introduction of online documentation, disclosure statements become so voluminous that rather than flagging genuine concerns for the parties, they bury real issues within a mass of irrelevant personal biography. The purpose of disclosure is to inform, not to give parties grounds for challenging arbitrators. Effectively, the second reading should be preferred for the interpretation of Article 12(2). The London Court of International Arbitration (LCIA) Arbitration Rules impose an objective disclosure standard with no explicit when in doubt provision. The Singapore International Arbitration Centre (SIAC) Arbitration Rules track IBA language without the subjective doubt addition. The International Centre for the Settlement of Investment Disputes (ICSID) Arbitration Rules go in a different direction, imposing a due diligence obligation, arbitrators shall make every effort to become aware of potential conflicts, which may in some respects be broader. Comparing these major commercial arbitration institutions, the 2026 ICC Rules provide much better clarity on arbitrator disclosure.

The Impact on India’s Arbitration Scenario

The 2026 ICC Rules apply when the parties contractually adopt them. Section 19(2) of the Indian Arbitration Act (“IAA”) provides that the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. The mandatory provisions of the IAA apply as a floor; institutional rules fill the procedural space above that floor.

Section 12(1) of the IAA applies the objective justifiable doubts test. The Fifth Schedule provides for a non-exhaustive list of categories modelled closely on the IBA Orange List. The Seventh Schedule operates differently, listing categories of persons who are ineligible to serve as arbitrators altogether, irrespective of party consent, modelled on the IBA Non-Waivable Red List. Parties adopting the 2026 ICC Rules therefore receive a stricter disclosure regime than Indian law alone mandates, which is entirely permissible, since the stricter obligation does not conflict with any mandatory provision. Ideally, the 2026 ICC Rules must be read in harmonious construction to rule out any ambiguities.

The Indian Supreme Court has also made comprehensive early disclosure essential to the enforceability of awards. The Court held in the TRF Ltd case that concerns of impartiality travel through the chain of appointment, not merely attaching to the individual arbitrator. Perkins case expanded this, holding that where a party has an interest in the outcome, its ability to appoint an arbitrator is structurally compromised, a concern that cannot be cured by subsequent disclosure alone. HRD Corporation case confirmed that the Fifth Schedule is non-exhaustive, meaning relationships not listed may still require disclosure if they create justifiable doubts, a ruling where the principle becomes important to interpret. The constructive interpretation includes statutory obligation under Section 12 of the IAA, Article 12(2) of the 2026 ICC Rules, and judicial reinforcement through Supreme Court decisions. Ultimately, the Doubt Standard perfectly complements India's pro-transparency regime.

Conclusion

Article 12(2) does not lower the disclosure threshold; it decides what happens when that threshold is genuinely unclear. It takes away the arbitrator's freedom to settle her own doubt quietly and hands that call to the parties, where a party-centric forum always meant it to rest. The provision reinforces the objective test rather than replacing it, and sits easily beside the Fifth Schedule and the Supreme Court's concern with appointment rather than repair. The grey zone will remain. What the 2026 ICC Rules settle is what an arbitrator does when she finds herself in it: disclose.