Preface
In a press release issued on September 15, 2017, the Ethics Committee of the Chinese Arbitration Association, Taipei (the "Ethics Committee") stated: "On September 14, 2017, the Ethics Committee discussed and passed the following resolution, which was on whether arbitrators should make disclosure to the parties if they have been handling several cases of similar nature within a specified period.
 

To comply with the above resolution which takes immediate effect, all TRF dispute cases administered by CAA will require arbitrators to be aware of the above disclosure requirement stated in resolution number 2. Arbitrators who meet the requirements must complete the 'Supplementary Statement of Arbitrators' in addition to the Arbitrator Statement. 
 
Furthermore, CAA has also included in the Arbitrator Statement (for TRF cases) a disclosure section to allow arbitrators to disclose: the number of cases in which the arbitrator has acted in TRF cases, the number of cases in which the arbitrator has been selected by the investor and the bank, and the number of cases in which the arbitrator has been selected as presiding arbitrator. Disclosure is to be made when the prospective arbitrator agrees to act as arbitrator.
 
Criteria and Purpose of Disclosure
The second paragraph of Article 15 of Taiwan's Arbitration Law imposes an obligation on arbitrators to inform the parties on the circumstances set out in subparagraphs 1 to 4. The explanatory notes are as follows: "Subparagraph 4 of the second paragraph refers to circumstances other than the first to third subparagraphs of the second paragraph, such as where the arbitrator has had a collegial or partnership relationship with one of the parties which is sufficient to give rise to suspicion that he or she is unable to carry out his or her duties independently and impartially". The standard of disclosure required of an arbitrator under the Arbitration Law should be "a relationship sufficient to give rise to suspicion that he or she is unable to carry out his or her duties independently and impartially".
 
Appendix I of the CAA Arbitrator Statement refers to the 2014 IBA Guidelines on Conflicts of Interest in International Arbitration (the "IBA Guidelines"), which is consistent with the standard of disclosure in international arbitration practice. The description of General Standard 3(a) in the IBA Guidelines, which refers to the obligation of an arbitrator to disclose to the parties, the arbitral institution, and other arbitrators of the arbitral tribunal "where, in the eyes of the parties, facts or circumstances give rise to doubts as to the arbitrator's impartiality or independence", is in line with Article 15(2) of the Arbitration Law where it expressed as "relationship is such as to give rise to doubts".
 
In the IBA Guidelines, the interpretation of Standard 3 specifically states that disclosure does not imply the existence of a conflict of interest and that the arbitrator making the disclosure considers himself or herself to be impartial and independent, otherwise he or she would have declined the appointment or resigned, and that the purpose of disclosure is to allow the parties to determine whether they agree with the arbitrator's assessment and to explore it further. The implications of this paragraph can be summarized as below:

 
The second aspect of the Ethics Committee's decision thus becomes understandable, which requires disclosure by an arbitrator who has been selected to arbitrate more than three Target Redemption Forward (TRF) disputes within three years. This means that the arbitrator's own discretion on disclosure is restricted in TRF cases, as he or she must disclose if such facts exist. Further, the disclosure requirement effectively acknowledges the parties' need for further exploration, in terms of requiring the arbitrator not only to disclose whether he or she has been selected to arbitrate more than three TRF disputes in the past three years, but also to disclose the number of cases in which the arbitrator was selected by the investor or banker respectively, and the number of cases selected as the presiding arbitrator.
 
Does the disclosure requirement imply withdrawal by arbitrator?
The legislative intent of current Arbitration Law (1998) provides that Articles 15 and 16 (Editor's note: regarding challenges to arbitrators) are based on Article 12(1) and (2) of the UNCITRAL Model Law on International Commercial Arbitration ("Model Law"), respectively.
 
The IBA Guidelines further elaborate that the applicable test under Article 12 of Model Law is a “reasonable third person” test, under which "doubts [as to the arbitrator's impartiality] are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision”. This explanation is in line with the statement of Lord Chief Justice Hewart in The King v. Sussex Justices. Ex parte McCarthy that “a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
 
This statement also echoes the ROC Supreme Court's Civil Judgment 100 Tai-Shang-Zi No. 180, which decided that "where the challenged arbitrator still participated in the arbitral proceedings, the arbitral award of that arbitration may be set aside due to the breach of integrity and fundamental principles of due process, as the arbitrator lacked impartiality. Further, where grounds for challenges exist, the arbitrator's impartiality is in doubt and his or her further participation in the arbitral proceeding, including the deliberation and making of the award, is sufficient to change the final result of the proceeding.
 
Accordingly, the purpose of arbitrator challenge is to enable justice to be unquestionably seen and to be done. The standard is whether a reasonable third party with knowledge of the relevant facts and circumstances would believe the arbitrator could be influenced by indicators other than the substance of the case asserted by the parties.
 
Disclosure, on the other hand, relies on the perspective of the parties, specifically whether they agree with the arbitrator's decision of disclosure (or non-disclosure), and whether further exploration is necessary.

The two mechanisms, while appearing quite similar, in fact have different purposes and applicable tests. In this regard, the language of Article 16 of current Arbitration Law is undesirable, as it tends to confuse the purposes of disclosure by arbitrator and challenge to arbitrator.
 
Assessing Arbitrators' non-disclosure
The interrelationship between non-disclosure by arbitrators and the grounds for challenging arbitrators remain controversial. The 2014 IBA Guidelines provides certain useful insights in this respect: As a general rule, "non-disclosure" does not of itself result in arbitral institution's refusal of appointment, remove or disqualification of an arbitrator. The mere fact of "non-disclosure" does not in itself lead to the lack of independence and impartiality of the arbitrator. This is a shift from the older rules before 2004 that non-disclosure itself is sufficient to create a ground for disqualification.
 
From a practical view, this change is a welcoming one, and was supported by the UNCITRAL Arbitration Rules and scholars such as Stewart Abercrombie Baker & Mark David Davis. The later commented, in an article, that “[w]hether nondisclosure raises such doubts would depend on whether the failure to disclose was inadvertent or intentional, whether the failure to disclose was the result of an honest exercise of discretion, whether the facts not disclosed obviously raised questions about impartiality and independence, and whether the nondisclosure is an aberration on the part of a conscientious arbitrator or appears to be part of a pattern of circumstances raising doubts as to impartiality”. It is also interesting to note that, according to the French press, there were four cases in 1999, 2001, 2002, and 2008 in which the International Chamber of Commerce disqualified the arbitrators due to their failure to disclose the relationship between the arbitrator and the sponsoring counsel, which shows that non-disclosure itself remains an important consideration.
 
Concerns arising from multiple appointments
With the growing development of international arbitration in recent years, multiple arbitrator appointments has become a hot topic. In modern commercial disputes, it is common for enterprises to engage experts to assist their activities to reduce risks. However, this restricts the choice of arbitrators especially those involved with specific fields such as energy or finance. As a result, multiple appointments become more frequent. Balancing between impartiality, independence and professionalism has thus become an important challenge.

The main concern arising from multiple appointments is that, if an arbitrator is appointed by the same party or law firm, his or her independence might be compromised in order to secure re-appointment.  According to Article 3.1.3 of practical application of the general standards in IBA Guidelines, an arbitrator who has been appointed by the same party over two times within the past three years falls within the orange list and should therefore make disclosure. The same applies to an arbitrator who receives more than three appointments by the same counsel or law firm within the past three years.
 
Conclusion
In practice, arbitral tribunals have ever set certain criteria for withdrawal, including proximity, intensity, dependence, materiality, to evaluate an arbitrator's relationship with a party or representative and thereby determine whether any doubts from a reasonable third party would be justifiable.

As mentioned above, CAA Ethics Committee made a resolution in 2017 which has been incorporated into the current CAA Arbitrator Statement.  This resolution requests the arbitrators of TRF cases to disclose their total number of cases within the past three years. The purpose of the disclosure is to provide the parties the opportunity to review an arbitrator's qualification and consider any necessity to make further exploration. And more importantly, arbitrators can demonstrate their independence and impartiality through such disclosure.

However, from another point of view, the disclosure requirement in the CAA Arbitrator Statement for TRF cases is not a limitation on matters that shall be disclosed. In other words, an arbitrator needs to disclose any matter that might give rise to justifiable doubts about his or her independence and impartiality according to their own judgement. 
   
If an arbitrator should have made disclosure but fails to, that does not necessarily result in disqualification, although it would be regarded as an important element to decide whether he or she shall withdraw. Observed from practical experiences, such non-disclosure itself might give rise to doubts from a reasonable third person, unless such non-disclosure arose from the arbitrator's reasonable negligence or under justified judgement. In the interests of ensuring that justice is seen to be done (especially by a reasonable third person) and preserving the integrity of arbitration system, the arbitrator should choose to withdraw or resign in this situation.