Arbitrator’s Conduct on Social Media

This article proposes a revision to the ‘Green List’, sections 4.3.1 and 4.4.4 of the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration 2014. It argues that the classification of social media relationships for disclosure requirements should be divided into two categories: (i) connections on professional and (ii) general social network sites, based on the functionalities of the platform’s features. The article then suggests that social media mining can be used for assessing challenges based on social media relationship with quantitative analysis on close personal relationship between an arbitrator and a party or counsel that * Suar Sanubari, Senior Associate, Dispute Resolution, Hiswara Bunjamin & Tandjung. suar.sanubari@hbtlaw. com. The views expressed in this article are solely those of the author. The author would like to thank Professor Stavros Brekoulakis who encouraged writing about the topic, as well as fellow LLM programme students Scott Charles Schubert and Chloe Stonex-Bonnet, Mary Mitsi the Teaching and Research Fellow at Queen Mary University of London, and Antony Crockett of Herbert Smith Freehills, as well as JIDS anonymous reviewers who read and commented the draft. Credit is also given to Lembaga Pengelola Dana Pendidikan (the Endowment Education Fund) of the Ministry of Finance of the Republic of Indonesia for supporting the author financially with full scholarships for his LLM studies, and to Lubis Santosa & Maramis for the additional stipends. The author also benefited from the Alumni and Friends of School of International Arbitration Conference 2015 hosted by Norton Rose Fulbright. The author would like to thank Ayaz Ibrahimov specifically for choosing the topic submitted by the author for the panel discussion, thus allowing the topic to be discussed by reputable arbitration experts and practitioners. The author was fascinated by how social media data can and have been used for researches in psychology, sociology, anthropology and marketing from the first time he introduced to such notion. That was when he was working on a social media defamation case, during which he had the privilege of meeting Roby Muhamad, one of the researchers in Columbia University’s Small World Project, who was presented as expert in the hearing. The author himself is a social media user. As a millennial, it seems natural for the author to join the ranks of the ‘Hashtag Generation’. The author is an active user of Facebook, LinkedIn, Instagram and Path. The author uses and relies on social media heavily, yet is wary of connection addiction. The author understands social media should support offline social life. However, the attachment to them may even degrade offline social life. The author tries to limit his time spent social media. Nevertheless, he can never completely detach himself from their use. Social media has become an integral part of the author’s life. One fine example is this article. The author posted a thought on 11 July 2015: ‘So I am writing an article [about] social media. I’m doing most of my research on social media. Being distracted in between writing by social media. And recording my thoughts and feelings on social media.’ Therefore, the topic is not just novel, but also interesting and relevant to modern life. The advantage of a novel topic is the freedom to explore it and create new original ideas. Obviously, the biggest challenge is the lack of reference materials. The author knows from the start that he would have to look beyond law to write this article. Fortunately, social media removed many barriers in searching for the reference materials. The author managed to access online journals for various scientific disciplines. Reading interdisciplinary scientific subjects was not an easy feat for the author. However, the author found the efforts to be exhilarating and rewarding. VC The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] 1 Journal of International Dispute Settlement, 2017, 0, 1–24 doi: 10.1093/jnlids/idw026 Article by gest on Jauary 0, 2017 D ow nladed from gives rise to justifiable doubts as to independence and impartiality by measuring the tie strength of the said online relationship. The article also explores the possibilities of social media mining for profiling arbitrators. Lastly, the article discusses the concerns related to social media mining and proposes social media mining procedure for arbitration to address them. 1 . I N T R O D U C T I O N The use of social media, specifically social network sites, by arbitrators as legal professionals may create issues regarding conflicts of interest. Arbitrators’ conduct and virtual relationships with parties or counsel on social media may arouse questions about their independence and impartiality. There have been several scholarly suggestions about how an arbitrator (in performing his/her dual roles as service provider and judicial function) should approach social media. These range from total abstinence to limited and controlled use. Prohibiting arbitrators from using social media is the safest way to avoid conflicts of interest or suspicion about the lack of independence and impartiality. However, such prohibition will deprive arbitrators of the professional advantages in their role as service providers, particularly networking and marketing. Given the proliferation of social media in every aspect of life, the total abstinence approach is not a suitable one for the modern world. Even if the proponents of complete prohibition of social media use by arbitrators support their arguments by emphasizing an arbitrator’s judicial function, it should be noted that many of the judicial ethics committees in the United States and the American Bar Association (ABA) do not endorse such an approach for judges. The majority consensus is that judges may participate in social media with certain caveats. The International Bar Association (IBA) Guidelines on Conflict of Interests in International Arbitration (the ‘Guidelines’), the soft law that will be the main focus of this article, and International Principles on Social Media Conduct for the Legal Profession 2014 are also strong indications of the acceptance of social media use by arbitrators within the legal professions. Therefore, a permissible but controlled approach is more suitable to current developments in legal practice. The permissible approach requires further elaboration on the limitation and control aspects. The Guidelines simply classify any social media relationship between arbitrators and parties or counsel in the ‘Green List’. This means the connection will never lead to disqualification under the objective test and need not be disclosed. However, it is important to take into account the debate on social media relationships during the panel discussion of 2013 IBA’s Annual Meeting that gave rise to the 1 JE Kalicki and M Silberman, ‘Social Media and Conflict of Interests: A Challenge for the 21st Century’ (Kluwer Arbitration Blog, 23 April 2012) <http://kluwerarbitrationblog.com/blog/2012/04/23/socialmedia-and-arbitration-conflicts-of-interest-a-challenge-for-the-21st-century/> accessed 16 February 2015. 2 CV Harvey, MR McCoy and B Sneath, ‘10 Tips for Avoiding Ethical Lapses when Using Social Media’ Business Law Today (January 2014) 11 <http://www.americanbar.org/publications/blt/2014/01/ 03_harvey.html> accessed 5 December 2016. 3 IBA, Guidelines on Conflict of Interests in International Arbitration 2014 Part II, Green List, ss 4.3.1 and 4.4.4. 4 ibid, Explanation to General Standard 3. 2 Arbitrator’s Conduct by gest on Jauary 0, 2017 D ow nladed from Guidelines (the ‘Meeting’). Lawrence Schaner suggested that most cases of social media connections do not represent real and actual relationships. Hillary Heilbron QC opined that the issue of disclosure is about the nature of a particular relationship, not the source. Therefore, social media relationships in the ‘Green List’ must not undermine the general principle if an arbitrator finds him/herself in a circumstance that needs to be disclosed. Basically, the discussions on disclosure revolve around whether an arbitrator who has a social media connection with a party or a counsel also has a real (offline) relationship that may give rise to justifiable doubts as to the independence and impartiality of the arbitrator. The Meeting acknowledged that shunning social media would deprive arbitrators of a medium to market themselves. Moreover, exchanging contacts via social media has become just as much an acceptable business practice as the exchange of business cards, particularly for the younger generation of lawyers. It is also interesting to note that only LinkedIn, Facebook and Twitter—the most popular social media platforms—were mentioned in the discussion. Furthermore, the report on the Meeting has no record of any discussion on the definition and scope of social media. As this article elaborates in the next sections, social media can exist in various forms and hold different features that represent several functionalities. The absence of discussions on what social media is during the Meeting may be an indication of a limited understanding of social media among arbitration practitioners. The Meeting also did not discuss any case precedent of a challenge based on social media relationships. One of the first known cases involving a challenge based on a social media relationship was EURL Tecso v Neoelectra SAS Group. In that case, Tecso petitioned for an award to be set aside to the French courts. One of the arguments raised was the fact that the President of the Tribunal was a Facebook ‘friend’ of the counsel of Neoelectra.