A Critical Analysis of the IBA Guidelines on Party Representation - Chapter 03 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

Author(s):

Felix Dasser

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30 pages

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Published:

October, 2015

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Originally from Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

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1. CONTEXT

In his keynote address to the 2012 ICCA Congress in Singapore,

the Attorney-General and designated Chief Justice of Singapore,

SUNDARESH MENON, hailed the “golden age of arbitration”. So far, so

good. He then went on and lambasted the present crop of arbitrators as

being in urgent need of a regulatory framework—including entry

requirements and supervision of conduct. He proposed as a “relatively

straightforward and minimally invasive first step [...] to develop a code

of conduct and practice to guide international arbitrators and

international arbitration counsel”. Such a code “could well in time

become the Grundnorm for a more robust regulatory system”.1 While

Mr. MENON focused on arbitrators, it is clear that he perceived an

urgent need to address ethics in international arbitration in general

and that there needs to be some kind of regulation, and that it would

be best to start with guidelines.

The audience did not hear this call for (self-)regulation for the first

time. Coming from an Attorney-General and designated Chief Justice

of a notoriously arbitration-friendly jurisdiction, it still made the

audience listen.

Two years ago, at the 2010 ICCA Congress in Rio de Janeiro, the

keynote address was presented by a US lawyer, Doak Bishop. Starting

from Catherine Rogers’ thesis that “international arbitration dwells in

an ethical no-man’s land”,2 he called for a code of conduct for counsel

in international arbitration and warned of complacency:

The lack of clarity as to which ethical rules apply, the existence
of conflicting rules and obligations, the non-transparency and
the increased size of many proceedings, combined with greater
public scrutiny, creates a certain instability in the system that
could result in a future crisis of confidence. It only takes one
highly visible, public spectacle to shake confidence in the
entire system. There are already critics of arbitration in various
countries, and if a public spectacle does occur involving
counsel, what easier target than to point to the fact that
international arbitration does not even have a Code of Ethics
for counsel.

He concluded that “[t]he international arbitration system needs to

be able to police itself”.3

He not only called for a Code, together with Margrete Stevens, he

also produced a draft that was presented at the ICCA Congress in Rio

and became known as the “Rio Code”.4 The Rio Code drew heavily on

the 1988 IBA International Code of Ethics and the 2006 Code of

Conduct for European Lawyers of the CCBE and, as such, was not very

contentious. One could argue over one or the other rule, but on the

whole, this draft Code of Ethics represented minimum standards that

all lawyers could by and large identify with.

Today, the Rio Code is almost forgotten. This should not have

come as a shock to its authors. Quite to the contrary, they themselves

called for “an organization like ICCA, or perhaps the IBA, [to] appoint

a working group of lawyers” to draft a code of ethics relying on

broadly based consensus. This consensual code should then by

reference be incorporated into the rules of the major arbitration

institutions in order to make it binding.5

2. HISTORY OF THE IBA GUIDELINES

The ICCA did not pick up the ball and run with it, but the IBA

did. As early as 2008, the IBA Arbitration Committee established a

“Task Force in Counsel Conduct in International Arbitration”. Maybe

the problem already started there. When the IBA Guidelines were

published, it did not go unnoticed that 7 out of the 23 members hailed
from North America and they were obviously not the back benchers.6