Denationalizing Counsel Ethics in International Arbitration - WAMR 2018 Vol. 12, No. 4
Originally from World Arbitration and Mediation Review (WAMR)
An arbitration may be conducted in Singapore, involving an English counsel for the claimant, an Egyptian counsel for the respondent, French co-counsels, and an American counsel as a legal expert. These diverse legal cultures may well clash. Absent an international bar that regulates the conduct of counsel in international arbitration, attorneys may be subject to various regulatory sources that govern their conduct, including the applicable rules of the arbitral seat, the place of the hearings, or their respective national ethical rules. The possibility of applying various regulations might either create or alleviate these conflicts. Counsel’s ethics in international arbitration is truly a daunting gray area. Although one ethical regulation might oppose another, both regulations might be appropriate. Human behavior involves utility maximization, rational expectations, and optimal processing of information. Based on the rationality standard, both set of ethics, though different in reality, may have different valid predictions on the appropriateness of the ethical conduct. National ethical standards for attorneys assume how they may behave at the national level; whereas ethical standards for counsel in international arbitration should be based on the normative theory of how they should behave. Counsel’s ethics in international arbitration should transfer the rationality standard to a more realistic model for their behavior at the international level.
The premise of this article is that international arbitration, in a globalized world, should be detached from local cultural magnates. I argue that arbitration has become a method of not only deciding disputes but also, similar to courts, a method of formulating rules of law on ethics, which should be specifically tailored to this private method. In turn, these rules may be used as a guide for future similar disputes that may procure similar outcomes. Based on this premise, international arbitration should apply distinct, autonomous, stand-alone ethical rules detached from national ones. International arbitration ethical rules can denationalize attorneys, and, therefore, create a level playing field for counsel ethics, avoiding home-based ethical rules. This presumption requires an analysis of the content of the IBA Guidelines on Party Representation in International Arbitration, as premier ethical rules for counsel in arbitration, in light of the functional approach of international arbitration and its essential features, namely, party autonomy, arbitrators’ jurisdictional powers over the proceedings, and the ethical role of the party representatives in the proceedings.