Counsel Comportment in International Arbitration - Chapter 24 - ICDR Handbook on International Arbitration Practice - Second Edition
Originally from the ICDR Handbook on International Arbitration Practice - Second Edition
I. Asking the Right Questions
A. Equality of Arms
1. Standards for Lawyer Comportment
Asking the right question remains vital to getting a helpful answer. ‘Do we need even more lawyer regulation?’ Such rhetorical flourish suggests an easy negative response in the debate over formalized standards to guide conduct of party representatives in international arbitration. At best, say the skeptics, such guidelines simply propound self-evident propositions. At worst they provide ammunition to sabotage proceedings or obtain award annulment.
An inquiry into the optimum amount of lawyer regulation brings little insight into how to address potentially perverse effects of divergent norms for lawyer comportment on matters such as ex parte communication, suppression of document and witness preparation. Although no playing field will be perfectly level, some remain less even than others. Cross-border arbitration may appear rigged against advocates that respect procedures not observed by the other side.
Not surprisingly, at least two questions beg further exploration in any discussion of lawyer behavior in arbitral proceedings. First, will codes of conduct promote equality of arms among counsel? Second, will costs of those codes outweigh their benefits?
Finely balanced arguments present themselves, implicating a dialogue calling for serious efforts at understanding competing perspectives. No side hits a home run or makes a slam dunk, even if strong opinions often differ by reason of particular experiences or divergent weight accorded the risks and benefits of varying levels of arbitrator discretion.