“Soft Law” and Hard Questions: ASA’s Initiative in the Debate on Counsel Ethics in International Arbitration - Chapter 02 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

Author(s): 

Elliott Geisinger

Page Count: 

16 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. INTRODUCTION

 

In April 2014, the Swiss Arbitration Association (“ASA”) made

public its Position Paper on the IBA Guidelines on Party

Representation in International Arbitration (the “IBA Guidelines”).

ASA’s Position Paper is reproduced in this ASA Special Series so that

there is no need to go into its details. In the meantime, the London

Court of International Arbitration (the “LCIA”) decided to address

some of the issues covered by the IBA Guidelines in an Annex to the

new LCIA Arbitration Rules that came into force on 1 October 2014.1 In

the arbitration community, both the IBA Guidelines and the Annex to

the LCIA Rules have received a mixed reaction, ranging from

unqualified approval to vehement opposition. The article by Dr. Felix

Dasser on the IBA Guidelines that is also included in this ASA Special

Series provides a panorama of commentary on the IBA Guidelines, and

adopts a critical stance.

 

Several ASA Board members and the author of this contribution

have given considerable further thought to the issues raised by the IBA

Guidelines and by the LCIA’s approach. The thought process has led

to three main considerations. First, whilst the current debate is

frequently labelled as a debate on counsel ethics, closer scrutiny shows

that it encompasses much broader issues. Many of the proposed

remedies have little to do with ethical matters, and are actually already

addressed in existing rules or principles. This first consideration means

that it is necessary to so some intellectual sorting and to identify better

what is really a question of ethics and what is not. This also narrows

down the debate on what should be done to tackle issues that truly

pertain to ethics. Second, to the extent that the debate does concern

ethics, the IBA Guidelines and the new LCIA Rules share a common

feature: the application and enforcement of the rules or guidelines

applying to counsel ethics is put in the hands of the arbitral tribunal.

This is, in the author’s modest view, the worst of all solutions, and this

contribution will briefly set out the reasons for this opinion. Third, the

considerable excitement caused by the debate on counsel ethics carries

a risk of a “me too” approach, with various entities and institutions

adopting their own rules or guidelines—thereby defeating the very

purpose of self-regulation. The second and the third considerations

have led the author of this contribution to imagine (some would say

daydream of) a solution that would both relieve arbitrators of an

unwelcome and potentially poisonous task and provide a truly global

solution to a global problem. This is ASA’s initiative calling for a

“Global Arbitration Ethics Council”.2

 

 

2. THE NEED TO SORT ISSUES

 

Gary Born has famously referred to the status of counsel ethics in

international arbitration as being more a “teenager’s bedroom” than an

ethical no-man’s land.3 The remark is highly apposite and actually

applies to some of the proposals for regulation. It is striking that many

of the issues raised are already regulated, in a different context.

 

 

2.1 Counsel Ethics and Independence and Impartiality of

Arbitrators

 

Take for example the question of instructing counsel to create a

potential conflict of interest for one or several members of the arbitral

tribunal. This concern arose from the famous Hvrtska Elektroprivreda,

d.d. v. Republic of Slovenia matter in which the last-minute (and

unannounced) participation of a Barrister from the same Chambers as

one of the arbitrators raised issues of independence and impartiality

for that arbitrator.4 Guideline 5 of the IBA Guidelines addresses this

issue by stating that counsel should not accept instructions where this
can create an issue of conflict of interest for an arbitrator. Guideline 6