Chapter Three - CURING COUNSEL’S IMPROPER BEHAVIORS IN INTERNATIONAL ARBITRATION - Counsel as Client's First Enemy in Arbitration?

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CHAPTER THREE—CURING COUNSEL’S IMPROPER BEHAVIORS IN INTERNATIONAL ARBITRATION

I. THE ROLE OF COUNSEL’S DEONTOLOGICAL

(ETHICAL) RULES IN INTERNATIONAL

ARBITRATION

A question that readers may ask themselves at this point is

the following: are counsel not bound to the respect of

deontological rules which should prevent the behaviors described

before?

The term “deontological rules” is mainly used in the

European environment, while, in the Anglo-American world, these

rules are mainly referred to as “ethical rules”. For the reasons

stated at the beginning of this book,1 I prefer to stay away from the

notion of “ethics” when dealing with these rules and I will then

continue to call them “deontological”. Incidentally, the

deontological rules I will mention below are all written, while this

is not always the case for the so-called ethical rules, in spite of the

various attempts at codifying them. This adds a degree of

uncertainty in defining what is “ethical” and what is not.

In fact, counsel are often subject to a number of

deontological rules established by their professional bodies in the

countries in which they are respectively admitted to practice, such

as a national or local Bar, a Law Society, etc. These rules vary

from one association to another and may place a different emphasis

on counsel’s behaviors in civil law countries with respect to

common law countries, depending on the respective traditions and

cultures.2 A common denominator to all such rules is that they

generally contemplate, though with different words, that counsel

must behave in accordance with professionalism, integrity and