From an Ethical No-Man’s Land to a Principled Approach in International Arbitration

When Professor Catherine Rogers observed in her well-known 2002 article that “international arbitration dwells in an ethical no-man’s land”[1] very few appreciated, at the time, that her perceptive observation had hit a raw nerve in international arbitration. It is striking to look back in the 2000s now and realise that, despite the meteoric rise of international arbitration especially since the 1960s, there was no discussion, let alone regulation, about the ethical duties and professional conduct of the main actors in international arbitration—counsel, arbitrators, experts as well as institutions and lately third-party funders.

The only sets of guiding principles that originally existed in the 1980s was the International Bar Association Code of Ethics or the Charter of Core Principles and Code of Conduct promulgated by the Council of Bars and Law Societies of Europe. These ethical guidelines were setting out some fundamental, if vague, principles of ethical conduct such as the duty of the lawyer to be independent, the duty to keep clients’ matters confidential, the duty to be loyal to the client, the dignity and honour of the legal profession, the duty to treat clients fairly in relation to fees and the principle of double deontology whereby lawyers working outside their original jurisdiction have to abide by the ethical rules of the Bars and Law Societies of both the jurisdiction of their origin and the jurisdiction where they work. However, these codes of ethical conduct were aimed to regulate counsel work in general; they were not designed for the specific purposes (and particularities) of counsel work in international arbitration where parties, arbitrators and counsel come from diverse legal and cultural backgrounds with, often markedly, diverging expectations as to what constitutes ethical conduct. While one party’s counsel, for example, might believe it unnecessary to disclose a document unfavourable to their client’s case, another party’s counsel would regard themselves obliged to do so. While one counsel would happily engage in witness preparation before an arbitration, another would not. As it has been observed, while the double deontology principle aims to eliminate “inequality of arms”, it does not appear to work in practice.[2]

It was no wonder therefore that when two prominent investment treaty arbitrations, namely Hrvatska Elektroprivreda v Slovenia and Rompetrol v Romania, gave rise to the question of whether it should be acceptable for a party to appoint (just before the merits hearing) counsel from the same chambers as the chambers of a member of the arbitral tribunal, the tribunals took fundamentally different approaches. In the first case, the tribunal ruled that it had an inherent duty to order a party to dismiss their barrister on the grounds that he was in the same chambers as tribunal chair while in the second, a tribunal in similar circumstances found it had no basis to interfere in a party’s choice of counsel.

But international arbitration has proved to be a responsive and innovative legal field and legal profession and soon introduced a number of initiatives aiming to address, or at least provide some clarity about, issues of ethical conduct. For a start, the International Bar Association adopted in 2013 its Guidelines on Party Representation in International Arbitration. In 2014, the London Court of International Arbitration was the first arbitration institution to adopt specific provisions setting out ethical rules for counsel appearing before international tribunals. More recently, arbitration institutions and national legislations started to address ethical issues arising out of the participation of third-party funders. Three very interesting articles in the current issue are dedicated to the ethical conduct in international arbitration: Margie Jaime discusses the current status of regulation on ethical standards for counsel in international arbitration; Isaac Buckland makes  the case for uniform ethical standards international commercial arbitration, while Jonathan Cowe looks into arbitrator’s conduct in light of the critical public perception of ISDS. While the discussion as to how far ethical regulation should go and whether it should take the form of self-regulation or top-down regulation continues,[3] international arbitration has come a long way from an ethical no-man’s land to a principled approach to fundamental ethical questions.

Stavros Brekoulakis

Editor, London

Above is the editorial from Volume 85 Issue 3 of the CIArb's International Journal of Arbitration, Mediation and Dispute Management  which has now been published and is available for CIArb Members here. In order to access the journal Members need to log in to their MyCIArb account.

[1]Catherine A Rogers, “Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration” (2002) 23 Mich J Int’l L 341.

[2] James Castello speaking at the Conference on Counsel Ethics in International Arbitration, Queen Mary University of London, September 2015.

[3]  See Catherine Rogers, Ethics in International Arbitration (OUP 2014).