Page 53 - นิตยสารดุลพาห เล่มที่ ๒-๒๕๖๑-กฎหมาย

ดุลพาห

published a general opinion regarding an issue that is being arbitrated.
However, the IBA Guidelines are frequently criticized as providing

“scant guidance” for issue conflicts.
14

b. Issue Conflicts in International Arbitration

The major international arbitration rules that address the issue

conflicts governance are the followings:

i. UNCITRAL Arbitration Rules

One of the disputes regarding the issue conflicts have been
raised under the UNCITRAL Arbitration Rules is whether the prior legal

opinion issued by the challenged arbitrator revealing his personal
informationabout the disputed arbitration constitutes an issue conflict.

Here, the appointing authority, designated by the Permanent Court of
Arbitration, decided that the legal opinions were on a peripheral but

not directly related issue because there was no direct relationship to
the disputed factual issues and the opinion did not provide an

appearance of bias.
15

Another dispute relied upon the IBA Guidelines’ indication that
an arbitrator may be disqualified for “publicly advocating a specific

16
position regarding the case that is being arbitrated.” This case, the
Canadian Canfor Corporation sought damages from the U.S. for measures

which imposed anti-dumping and countervailing duties on softwood

14. Joseph R. Brubaker. The Judge Who Knew Too Much: Issue of Conflicts in International
Adjudication. Berkeley J. Int’l L. 2008.
15. Challenge Decision of 11 January 1995, reprinted in Yearbook Commercial Arbitration XXII,
227, at 240 (1997).
16. Canfor Corp. v. U.S.A. (consolidated with Tembec, Inc. v. U.S. and Terminal Forest Prods.
v. U.S. by Order dated Sept. 7, 2005), details available at http://www.naftaclaims.com/
disputes_us_canfor.htm.

42 เล่มที่ ๒ ปีที่ ๖๕