Ethics for Arbitrators at the International Level: Who Writes the Rules of the Game? - ARIA - Vol. 25, Nos. 3-4, 2014
Author(s):
Megan K. Niedermeyer
Page Count:
16 pages
Media Description:
1 PDF Download
Published:
April, 2015
Description:
Originally from American Review of International Arbitration - ARIA
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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?
I. INTRODUCTION
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
arbitration tribunals around the world.1 The growing popularity, and even