The Ethics of Advocacy in International Arbitration - Chapter 3 - The Art of Advocacy in International Arbitration - 2nd Edition

Author(s):

Catherine A. Rogers

Page Count:

18 pages

Media Description:

PDF from "The Art of Advocacy in International Arbitration - 2nd Edition"

Published:

May, 2010

Jurisdictions:

International

Practice Areas:

Arbitrators and Arbitral Tribunals,

Code of Ethics for Arbitrators,

International Character of Dispute,

Practice & Procedure,

Advocacy,

Basic Standards of Due Process

Author Detail:

Catherine Rogers is a law professor who she teaches a range of comparative and international law subjects at two schools, the Paul M. Hebert Law Center, Louisiana State University, in Baton Rouge, Louisiana, and Istituto Diritto Comparato (IDC), Università Commerciale Luigi Bocconi, in Milan, Italy. The primary focus of her scholarship is international arbitration, with a special emphasis on the development international standards of professional conduct for attorneys and arbitrators, as well as more generally the nature of the public/private divide in international dispute resolution systems. She has lectured and published extensively on lawyers' and arbitrators' ethics in international arbitration, and her scholarship has been recognized through several awards, including the Stanford-Yale Junior Faculty Forum (2001 and 2004) and the CPR Professional Article Award (2002). She is an appointed member of the Academic Council of the Institute of Transnational Arbitration, and she sits on the Advisory Board of the Penn State Dickinson School of Law's Institute of Arbitration Law and Practice.

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Originally from The Art of Advocacy in International Arbitration - 2nd Edition

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I. Introduction

Traditionally, attorneys are subject to ethical rules that are created and enforced by national and sub-national regulatory authorities. As dispute resolution has gone global,1 however, attorney ethics increasingly defy this traditional regulatory model.2 In many systems, there are doubts about whether the ethical regulations of an attorney's "home state" extend extraterritorially, for example, into international arbitrations occurring elsewhere.3 Even when home state ethical rules are applied extraterritorially, however, they most often conflict with the rules that govern opposing counsel from a different jurisdiction. At best, therefore, attorneys in an international arbitration are each abiding by different and often-conflicting national ethical rules. At worst, they are operating in an ethical noman's land.

When the topic of ethics in international arbitration is discussed, the assumption is that the only real concern is the content of the substantive rules that guide and regulate attorney conduct. However, just as the substantive ethical rules in any national legal system exist within the framework of a larger regulatory regime, so too must any ethical rules developed for the international arbitration system. This Chapter reviews some of the well-known conflicts and ethical ambiguities that arise in international arbitration, and examines some of the problems in developing a uniform set of rules that are increasingly regarded as a necessary development. Beyond the substantive rules, however, this Chapter also takes up the related problems inherent in implementing and enforcing those rules.