The international arbitration community has often been (irreverently) lauded as

an “old boys’ network,” intrinsically interconnected in its approach and

susceptible to the pitfalls of self-dealing. The unique nature of international

arbitration as a practice makes any attempt to address potential ethical quandaries

a difficult task; by its nature, international arbitration brings together lawyers

from diverse jurisdictions, to resolve disputes according to privately devised

rules, in a seat or locale that can be devoid of any obvious connection to the

parties at play. In 2004, in response to this lack of clarity the International Bar

Association put forth the IBA Guidelines to provide further direction for how to

best address the ethical issues typically arising in the course of international

arbitration. Though these Guidelines were recently updated in 2014, the updates

consist of finite revisions and clarifications rather than a move towards a cohesive

set of rules that can be applied, with salience, across jurisdictions. The challenge

for arbitral ethics remains: these guidelines, developed by an organization

without the power to discipline, lack teeth and have failed to coalesce a tipping

point of international arbitration players to converge towards the IBA’s uniform

set of ethical standards. This begs the question: in the cross-jurisdictional practice

of international arbitration, whose ethical standards apply, and how should the

rules of the game be written?

 

 

 

There is no doubt that the practice of law is increasingly global; especially in

the context of large law firms, lawyers across offices, jurisdictions, and continents

routinely work together on the same matters to solve their clients’ problems by

applying a combination of local, national, and international laws, regulations, and

best practices. Accompanying the wider trend of globalization has been the

growth of the field of international arbitration. As capital spreads deeper and

wider across markets, complex cross-border transactions are the new normal and

have become routine. In an effort to reduce the risks associated with parties,

investments, and contracts residing in various countries, companies increasingly

turn to international arbitration as the preferred method to settle eventual disputes.

American Lawyer magazine estimated that as of August 2013, about 120

international arbitration actions, totaling over $1 billion each, were pending at
arbitration tribunals around the world.1 The growing popularity, and even