Originally from European International Arbitration Review (EIAR)

I. Inappropriate Use of the Notion of Ethics in Arbitration

The subject of ethics in arbitration is not an easy one to address. In a very general sense, “ethics” seems to be an “inflammable material”, to be handled with care, caution and a degree of humility. A lot of people complain about the lack of consistency in ethics, without always being qualified to do so. In truth, it has to be said that ethics is not a static, universal notion, but is constantly evolving and varies according to time and place. As an example, behaviour that is considered unethical today would not have attracted criticism even fifty years ago. One only has to think of relations between the sexes in the workplace. Similarly, behaviour considered as ethical in some parts of the world will not be in others. Take, for instance, the varying degrees of acceptance of whistleblowing on both sides of the Atlantic.

Many ethical precepts have been translated, or are in the process of being translated, into legal norms, whether as binding rules or soft law, under pressure from the collective social conscience of a given community. When this happens, the sanction for conduct in breach of these norms is a legal one, with all the legal certainty this brings for those involved in upholding the law. By contrast—leaving aside the uncertainty inherent in the fact that it is not always clear who has the authority to decide whether or not a given behaviour is ethical—the sanction for conduct that is merely a breach of ethics is only a matter of social censure, and is not defined in legal terms. That said, social disapproval can have a deterrent effect as strong as that of legal sanctions, especially in certain professional contexts where an individual’s reputation is of paramount importance for his or her career. It is rather inappropriate, therefore, to speak of ethics in terms of conduct that is sanctioned by legal norms, be they binding rules or soft law. In the latter case, at the risk of stating the obvious, I would point out that a soft law norm, such as those laid down in codes of conduct, might not be binding but that does not deprive it of legal relevance. It is a well-known fact that the legal relevance of a precept is not limited to its binding force, but can take various forms. For examples it is widely recognised that nonbinding provisions like recommendations issued by international organisations have legal effects such as the effect of legitimacy.