Curing Counsel's Inappropriate Behavior in International Arbitration - Chapter 6 - The Dark Side of Arbitration
Originally from The Dark Side of Arbitration
I. The Role of Deontological Rules for Counsel in International Arbitration
Readers may wonder at this point whether counsel are actually bound by deontological rules that should prevent the behavior I have described.
The term “deontological rules” is mainly used in Europe, while, in the Anglo-American world, these rules are mainly referred to as “ethical rules.” For the reasons stated in the introduction to this book, I prefer to stay away from the notion of “ethics” when referring to these rules and so I will continue to speak of them as “deontological.” The deontological rules I will mention below are all written, while this is not always the case for so-called ethical rules, in spite of the various attempts to codify them. This adds a degree of uncertainty to 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 behavior in civil law countries with respect to common law countries, depending on the respective traditions and cultures. The common denominator to all such rules is that they generally contemplate that counsel must behave with professionalism, integrity and honesty, or they utilize other expressions such as fairness, probity, humanity, but to similar effect.
All these rules, of course, apply to counsel when acting before their national courts and sometimes also before the courts of foreign countries, as is the case of the rules applicable to barristers in the UK. The duties counsel are subject to by these rules are duties to their opponents, the court, and their professional associations.