The double requirement of “independence and impartiality”, which arbitrators have to deal with can now be found in virtually any institutional rules of procedure, applicable to arbitral proceedings, as well as in national laws governing arbitration. While it is true that the same rules do not apply around the world, the emergence of the International Bar Association Guidelines on Conflicts of Interest in International Arbitration has helped to create more unified general principles, which have in the past been applied or referred to by state courts even when not explicitly agreed upon by the parties. The two fundamental principles guiding the IBA Guidelines on Conflicts of Interest in Arbitration are, unsurprisingly, independence and impartiality.

State court judges are also bound by principles of independence of impartiality, but not in the same way as arbitrators. As such, no state court judge is required to investigate a potential conflict of interest when “accepting/receiving” a case. On the other hand, special circumstances that might give rise to a potential conflict of interest can be waived by the parties to an arbitration proceeding, when such conflict of interest would lead to an automatic exclusion of that judge in state court proceedings.

This paper highlights and analyses the different standards for state court judges in Austria and Germany with that of international arbitrators under the IBA Guidelines.