Advocacy in International Commercial Arbitration: ASA Special Series No. 36 - Professional Conduct in International Arbitration—A Discipline of Its Own for a Discipline of Its Kind
Matthew Gearing is a Partner in Allen & Overy LLP in the Litigation Group, specialising in international arbitration. His experience includes arbitrations under the ICC, UNCITRAL, SIAC, HKIAC, SCC, LCIA and ICSID Rules in Europe, South America, Trinidad, Barbados, Tanzania, Pakistan, India, Sri Lanka, the former Soviet Union, the Philippines, the People's Republic of China, Korea, Singapore, Vietnam and Indonesia as well as Hong Kong. Mr. Gearing often appears as advocate in his cases. He is a past Co-Chair of the LCIA's Young International Arbitration Group, a member of the LCIA's Asia Pacific Users Council and a Council Member of the Hong Kong International Arbitration Centre. Mr. Gearing is a joint editor of "Russell on Arbitration" and has written and spoken widely on arbitration.
Sheila Ahuja is an Associate in Allen & Overy's Hong Kong office. She has been involved in a range of arbitrations involving various jurisdictions such as India, England and Wales and the Philippines. She has assisted in court and arbitration proceedings involving disputes relating to derivatives transactions and has also assisted international corporations in relation to regulatory investigations before disciplinary bodies in Hong Kong and England and Wales. Her recent experience includes representing an international oil and gas major and its Indian joint venture partner in arbitration proceedings commenced against the Government of India under the UNCITRAL Rules, representing a European construction and engineering company in an ICSID arbitration against the Government of Philippines, and representing a European investment bank in derivatives arbitration in London under the LCIA Rules.
Ms. Ahuja is admitted to practice in Hong Kong. She studied in London, Hong Kong and Cambridge.
When Prof. Catherine A. Rogers wrote on this topic in 2002, she noted that international arbitration "dwells in an ethical no-man’s land."1
A common feature in the practice of every lawyer around the world is professional conduct regulation. Lawyers across all jurisdictions are subject to certain rules which regulate their conduct in the practice of their profession. Most, if not all, jurisdictions have their own set of rules governing the conduct of those lawyers who are admitted into that jurisdiction. In many but not all cases these rules continue to bind a lawyer irrespective of where he or she chooses to practice. Thus although the principle of applying each of these rules is largely territorial, their application in some situations is extraterritorial.
Professional conduct regulation is also territorial in the sense that a lawyer may be subject to the rules of the jurisdiction in which he or she chooses to practice, just by virtue of being physically located in that jurisdiction and even if not qualified in that jurisdiction. Thus a practising lawyer could at any certain point in time be subject to multiple rules in multiple jurisdictions, the connection in most cases resulting from one type of territorial connection or another with such jurisdiction.
While a territorial-based approach is completely logical in the territorial-based platform of national court litigation, this approach is not easily translated into international arbitration. International arbitration by its very nature involves arbitration lawyers from different jurisdictions coming together before what is more likely than not an internationally-composed arbitral tribunal seated in a jurisdiction that very often bears no connection to any of the parties. This begs the question as to what is the best approach to regulate the professional activities of lawyers in international arbitration. While that may be an interesting question, most interesting questions are labelled so for lack of an obvious answer. This is most certainly one of them.