The Ethics of Advocacy in International Arbitration

Electronic copy available at: http://ssrn.com/abstract=1559012

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Catherine A. Rogers

*

Traditionally, attorneys are subject to ethical rules that are created andenforced by national and sub-national regulatory authorities. As disputeresolution has gone global,

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however, attorney ethics increasingly defy thistraditional regulatory model.

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In many systems, there are doubts about whetherthe ethical regulations of an attorney’s “home state” extend extraterritorially, forexample, into international arbitrations occurring elsewhere.

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Even when homestate ethical rules are applied extraterritorially, however, they most often conflictwith the rules that govern opposing counsel from a different jurisdiction. At best,therefore, attorneys in an international arbitration are each abiding by differentand often-conflicting national ethical rules. At worst, they are operating in anethical no-man’s land.When the topic of ethics in international arbitration is discussed, theassumption is that the only real concern is the content of the substantive rules thatguide and regulate attorney conduct. However, just as the substantive ethicalrules in any national legal system exist within the framework of a largerregulatory regime, so too must any ethical rules developed for the internationalarbitration system. This Chapter reviews some of the well-known conflicts and

*

Professor of Law, Pennsylvania State University, Dickinson School of Law, UniversityPark, Pennsylvania & Università Commerciale Luigi Bocconi, Milan, Italy.

1

See

Thomas E. Carbonneau,

The Remaking of Arbitration: Design and Destiny

27, inL

EX

M

ERCATORIA AND

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RBITRATION

(Thomas E. Carbonneau, ed., 1998).

2

See

Ronald A. Brand

, Professional Responsibility in a Transnational TransactionsPractice

, 17 J.L.

&

C

OMM

. 301, 335 (1998) (noting that a bar opinion permits parties tointernational arbitration to be represented by non-state-licensed attorneys); Toby S. Myerson,

The Japanese System

, in R

IGHTS

L

IABILITY AND

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THICS IN

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NTERNATIONAL

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EGAL

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RACTICE

69 (MaryC. Daly & Roger J. Goebel, eds., 1994) (noting that even traditionally restrictive Japanese lawchanged recently to permit non-Japanese-licensed attorneys to engage in international arbitrationsin Japan).

3

See

Detlev Vagts,

International Legal Ethics and Professional Responsibility

, 92 A

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. 378, 378 (1998) (noting that it is unclear whether the Model Rules apply inarbitration proceedings); Peter C. Thomas,

Disqualifying Lawyers in Arbitrations: Do the Arbitrators Play Any Proper Role?

, 1 A

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. 562 (1990) (“When an Englishbarrister suggested a couple of years ago that an advocate in a private commercial arbitration wasnot bound by the same duties owed by counsel to a court, the immediate (near unanimous)response was shock and indignation.”).

Electronic copy available at: http://ssrn.com/abstract=1559012

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2ethical ambiguities that arise in international arbitration, and examines some of the problems in developing a uniform set of rules that are increasingly regarded asa necessary development. Beyond the substantive rules, however, this Chapteralso takes up the related problems inherent in implementing and enforcing thoserules.

I. The Nature and Substance of Ethical Conflicts

Michael Reisman and Detlev Vagts long ago recognized that the conflictsamong national ethical rules require development of international ethical rules togovern attorney conduct in the context of international tribunals, specificallyinternational arbitration.

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Since then, a number of other important scholars haveadded their voices to a growing chorus calling for new ethical rules forinternational arbitration.

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The topic is increasingly popular at internationalarbitration conferences, and as a corollary to various efforts to address the ethicsof lawyers engaged in transnational legal practice. Literally dozens of newinternational codes of ethics have been drafted.For a long time, the only international ethical rules were found in the 1956International Bar Association (IBA) International Code of Legal Ethics.Although called a “code” and referred to as “rules,” that effort is most accuratelycharacterized as a set of professional notions rather than rules that provide anymeaningful guidance.

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More recent efforts include the IBA “Core Values”

4

See

W.

M

ICHAEL

R

EISMAN

,

N

ULLITY AND

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EVISION

:

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HE

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EVIEW AND

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NFORCEMENTOF

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UDGMENTS AND

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WARDS

116-17 (1971); Detlev F. Vagts,

The International Legal Profession: A Need for More Governance?

, 90 A

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L. 250, 250 (1996) (describingproblems in Iran Claims Tribunal caused by lack of ethical consensus among attorneys).

5

See

Charles N. Brower & Stephan W. Schill,

Regulating Counsel Conduct Before International Arbitral Tribunals

in M

AKING

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W

ORK IN THE

G

LOBAL

E

CONOMY

:

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SSAYS IN

H

ONOUR OF

D

ETLEV

V

AGTS

(forthcoming 2010); Pierre Heitzmann,

Confidentiality and Privileges in Cross-Border Legal Practice: The Need for a Global Standard?

,26 ASA

B

ULLETIN

205 (2008); Carrie Menkel-Meadow,

Are Cross-Cultural Ethics StandardsPossible or Desirable in International Arbitration?

, Georgetown Public Law Research Paper No.1130922; University of California Irvine School of Law Research Paper No. 2008-2, at 19,http://ssrn.com/abstract=1130922; Jan Paulsson,

Standards of Conduct for Counsel in International Arbitration

, 3

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. 214 (1992); John M. Townsend,

Clash and Convergence on Ethical Issues in International Arbitration

, 36 U.

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. 1(2004);

see also

Brian Cooper,

Ethics for Party Representatives in International Commercial Arbitration: Developing a Standard for Witness Preparation

, 22 G

EO

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J.

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779(2009).

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Mary C. Daly,

The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers

, 32 V

AND

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J.

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RANSNAT

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L. 1117, 1158 (1999).

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3Resolution, which began in 1998, and the IBA General Principles of the LegalProfession of 2006, for which new commentary is currently being drafted. Inaddition, the Bar Association Presidents’ Meeting developed in 2005 a Statementof Core Principles, which was adopted by 100 bar associations from around theworld, and the

Union Internationale des Avocats

(UIA) developed the TurinPrinciples

in 2002.

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In addition to these efforts, some international tribunals, such as theInternational Criminal Tribunal for the Former Yugoslavia and the InternationalCriminal Court in The Hague, have developed codes of ethics for defense counsel.There has also been a virtual explosion of auxiliary regulation of attorneysthrough national legislation and international agreements aimed at controllingmoney laundering, corruption, terrorism, tax evasion and trade in legal services.

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These various sources demonstrate increased recognition of the need to regulateattorneys, but they only address a limited range of ethical issues, and even thenonly partially and with limited success.The seminal and most familiar example used to illustrate the need forinternational ethical rules is the clash between national ethical rules relating topre-testimonial contact with witnesses. As one scholar recounts, lawyers fromdifferent jurisdictions have starkly different opinions about pre-testimonialcommunication with witnesses:An Australian lawyer felt that from his perspective it would beunethical to prepare a witness; a Canadian lawyer said it would beillegal; and an American lawyer's view was that not to prepare awitness would be malpractice.

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There are also significant national divergences about the nature and scope of disclosures that can or should be made. In many jurisdictions, communicationswith in-house counsel are confidential, while in others they are not.

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In

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For a detailed survey of these and other reform efforts to date,

see

Laurel S. Terry,

A“How To” Guide for Incorporating Global and Comparative Perspectives into the Required Professional Responsibility Course

,

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