Ethics in International Arbitration: The Big Debate

In May 2013, the IBA Council approved the IBA Guidelines on Party Representation in International Arbitration. The Guidelines are addressing a perception that “international arbitration has something of a reputation as the ‘Wild West’ of the law; a land where personalities are at least as important (or perhaps more so) than procedural rules, and legal representatives can be viewed by their clients as hired guns.” This is how Matthew Seys-Llewellyn’s put it in a report at Halsbury’s Law Exchange about a debate on the topic held in London on November 18, 2013: 

“This house believes that ethics in international arbitration requires no further regulation” was the motion discussed by the panel.

The debate was complemented by a survey amongst the attendees of the debate. They rejected the motion by a resounding majority of 80% of the attendees, 75% of whom said that an overarching international code was needed to provide clarity on which ethical rules apply.

David Joseph QC, proposing the motion, had argued that “with the 2013 IBA Guidelines on Party Representation in International Arbitration in place, after many years of argument, new rules were both unlikely to bring any material benefits or bring additional clarity.”  The attendees were clearly not convinced. They, and if they were representative of the arbitration community at large, then the wider arbitration community, are in favour of regulation that extends beyond the guidelines, be it in terms of scope, or in terms of binding effect.

Looking at the current regulation landscape, Rebecca Carter summarized it as follows: “The rules on ethics in international arbitration are formed of layers upon layers of overlapping and sometimes conflicting guidance and statutes. Some degree of consistency and clarity is certainly desirable. But then again, that is the very nature of the beast that is the legal system; the law is adapted, amended and tweaked to respond to changes. In a practice area as complex and diverse as international arbitration, are we asking too much for there to be a uniform set of rules to govern the ethics involved?”

So far in my legal practice, I have not come across a manifest ethics issue in arbitration yet. The clashes of culture that I experienced were, by and large, exactly that, clashes of culture, or clashes of style, of “this is how we do things over here”, and not of conflicting ethical standards. Therefore, I cannot really relate to the debate. But then, perhaps I have only been fortunate so far.

 

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