Order to Plurality: Imposing a Hierarchy for Ethics Rules in International Arbitration - ARIA - Vol. 28, No. 2
Originally from American Review of International Arbitration - ARIA
I. NEED FOR A HIERARCHY
Ethics are an untamed wild in international arbitration’s backyard. Arbitrators are entrusted with many responsibilities necessary to fulfill their central duty of adjudicating the merits of the parties’ claims. Occasionally, ethical questions arise that must be answered before issues of merit can be resolved. However, choosing which ethical rules apply can be a difficult exercise with no clear solution. According to a study conducted by the IBA in 2010, approximately 27% of practitioners surveyed indicated that they were uncertain as to which rules govern attorney conduct in international arbitration proceedings. Furthermore, 56% of respondents believed that their conduct may also be “subject to ethical rules other than those of the home jurisdiction.”
The reasons for this ambiguity are clear. Counsel are often obligated to follow the ethics rules of their home jurisdiction (the place where they are licensed to practice), but may also be bound by the rules of the host state (the place where the conduct in arbitration normally occurs). The rules of the home or host states may also provide choice of law provisions that specifically designate what laws and ethical standards govern conduct abroad. These provisions may further designate a third body of law. Ethics rules may also be selected by arbitral institutions or the parties themselves. Furthermore, once the arbitrators determine what ethical obligations the advocates have, they must impose a course of action that prevents attorneys from violating these obligations while placing the parties on a more-or-less equal footing so as to not confer advantages to either party.
It has become apparent that a supranational code of ethics in international arbitration is needed. As of this publication, there are currently no international principles of ethics binding on advocates in international arbitration, but substantial work has been made towards that end. The largest stride toward drafting an international code of ethics is the creation of the IBA Guidelines on Party Representation in 2013 [hereinafter the IBA Guidelines]. While the IBA Guidelines represent a significant accomplishment, they were intended (as their name suggests) to serve as guidelines and were not drafted to have a binding effect (unless the parties so agree) or to displace existing laws on party representation.
Until an international code of ethics exists, arbitrators are left with many sources of possible ethical duties, and no straightforward metric for choosing between them, or for how to apply them once selected. This article attempts to address these problems. It will show that arbitrators do (and should) have authority to resolve ethical disputes that come before them. The article next addresses possible sources of law that may govern ethical issues. Finally, it will provide a modest hierarchy that arbitrators may use to determine which laws apply, and how to utilize them once selected.