Problems of Ethical Standards For Representatives Before ICSID Tribunals

The Law and Practice of
International Courts and Tribunals 10 (2011) 67–134 brill.nl/lape
Problems of Ethical Standards for Representatives

before ICSID Tribunals
Arman Sarvarian*
Ph.D. Candidate, Faculty of Laws, University College London, UK
Abstract
There exists no ‘international bar’ regulating the practice of forensic advocacy before interna-
tional courts and tribunals. Before arbitral tribunals such as the International Centre for Settle-
ment of Investment Disputes and the Iran-US Claims Tribunal, legal argumentation is almost
entirely left to the discretion of parties. There has been concern amongst participants in the
arbitral process regarding ethical issues that have arisen concerning the conduct of representa-
tives. Through analysis of ICSID procedural rules and jurisprudence, with supplementary refer-
ence to other investment arbitral tribunals as well as the Iran-US Claims Tribunal, it is argued
that there is a need for procedural reform in order to introduce common and strict ethical stan-
dards of conduct for counsel appearing before such tribunals. In the absence of prescribed admis-
sion requirements or deontological rules, it is further submitted that ICSID tribunals have an
inherent power to protect the integrity of their own proceedings by sanctioning representatives
for misconduct. It is recommended that, as part of the progressive professionalisation of the
international judicial system, the principles of integrity of arbitral proceedings, fair trial and
equality of arms require that all litigants’ representatives be subjected to uniform standards of
conduct.
Keywords
Professional Ethics Counsel; advocacy; representation; International Centre for Settlement of
Investment Disputes (ICSID); investment arbitration; international procedure; arbitration
I. Introduction
There exists no ‘international bar’ regulating forensic advocacy before
international courts and tribunals. There are three requirements for the
existence of a professional bar: 1) admission requirements, that is a ‘bar’ on
*) LL.B. (Lond.), LL.M. (Cantab.), Non-Practising Barrister, England and Wales (Call: 2009).
Contact Details: UCL Faculty of Laws, Bentham House, Endsleigh Gardens, London WC1H
0EG; a.sarvarian@ucl.ac.uk.
© Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/157180311X565160
Sarvarian /
68 The Law and Practice of International Courts and Tribunals 10 (2011) 67–134
the persons who may be admitted to the profession; 2) ethical standards of

conduct binding upon all members of the profession; and 3) disciplinary
sanctions that may be imposed for infringement of those ethical standards,
whether by a self-regulating ‘bar association’ or by an external authority
such as the judiciary or a ministry of justice. Whilst there are ‘bars’ (for
defence counsel only)1 at the International Criminal Court, International
Criminal Tribunal for the former Yugoslavia and International Criminal
Tribunal for Rwanda there is as yet no ‘civil’ international court or tribunal
that meets these criteria.2 Moreover, there is not yet a unified ‘criminal
defence bar’ common to all of the criminal tribunals, still less an integrated
bar for all of the various sub-disciplines of public international law. In this
respect, the International Law Association’s ‘Hague Principles on Ethical
Standards for Counsel Appearing before International Courts and Tribu-
nals’3 mark an important first step towards a properly constituted and
regulated international bar.
Although the practice of international forensic advocacy and the struc-
ture of the ‘international bar’ have drawn intermittent attention,4 the
problem of ethical standards of conduct for representatives before interna-
1)
Although the ‘international’ character of the Special Court for Sierra Leone is contested, it
should be noted that the Special Court is a notable exception in that its admission requirements,
professional code of conduct and disciplinary regime are identical for both prosecutorial and
defence counsel – ‘Code of Professional Conduct for Counsel with the Right of Audience before
the Special Court for Sierra Leone’ (Adopted 14 May 2005, amended 13 May 2006), Art. 1(A)
(‘Definitions’): ‘Counsel: 1) Defence Counsel; 2) Prosecution Counsel; 3) Amicus Curiae; and
4) counsel representing a witness or any other person before the Special Court’. The regulation
of prosecutors before the ICTY, ICTR and ICC is considerably more complicated; prosecutors
are mostly self-regulating with limited external regulation by the judiciary (e.g. – contempt
proceedings).
2)
The International Court of Justice and International Tribunal for the Law of the Sea have none
of these features. Both the European Court of Justice and the European Court of Human Rights
have prescribed admission requirements and disciplinary sanctions for professional counsel, with
the major exception of ‘agents’ who represent ‘privileged litigants’ (States and European Union
organs) before the Courts.
3)
Presented by the Study Group on Practice and Procedure of International Tribunals at the ILA
Conference at the Hague, 15–20 August 2010. The Principles may be viewed at the following
url: http://www.ila-hq.org/en/committees/study_groups.cfm/cid/1012. The author served as
legal secretary to the Study Group throughout the drafting process of the Principles and was the
official reporter on the Study Group working session at the Hague Conference. The views
expressed here are those of the author alone and are derived from his own research.
4)
Caloyanni, ‘The Judicial Policy for the Settlement of International Disputes’ 17 TGS (1931),
85–111, 90–91, 97–99, 108–111; Caloyanni, ‘L’Organisation de la Cour Permanente de Justice’
Sarvarian /
The Law and Practice of International Courts and Tribunals 10 (2011) 67–134 69
tional courts and tribunals is largely virgin territory.5 Whilst the distinction
between ‘commercial’ arbitration (in which both parties are private enti-
ties) and ‘investment’ arbitration (in which at least one of the parties is a
State) can often be illusory, this article, inspired by the author’s doctoral
thesis,6 is confined to investment arbitration at the International Centre
for Settlement of Investment Disputes (‘ICSID’) in order to illustrate
the formal dichotomy in the representation of ‘public’ and ‘private’ liti-
gants. Although the practice of ICSID tribunals must be contextualised
within the particular procedural framework of the Centre, it should also
be recalled that it is part of the wider international judicial system. Thus,
this article also makes supplementary reference to the practice of other
international courts and tribunals for illustration of ethical dilemmas. In
doing so, the underlying principles upon which the regulation of the rep-
resentatives’ conduct impacts are the integrity of the arbitral procedure,
fair trial and equality of arms. Erosion of these principles, in turn, has the
potential to undermine the legitimacy of the ICSID system of dispute
settlement.
38 RdC (1931), 651–786, 768–776; Schachter, The Invisible College of International Lawyers,
72 NULR (1977) 217–226; Vagts, ‘The International Legal Profession: A Need for More Gover-
nance?’ 90 AJIL (1996), 250–261; Pellet, ‘The Role of the International Lawyer in International
Litigation’ in Wickremasinghe, The International Lawyer as Practitioner (2000), 147–162; Jen-
nings, ‘The Work of the International Bar’ in Vohrah et al., Man’s Inhumanity to Man (2003),
443–466; Cot, ‘Appearing “for” or “on behalf of ” a State: The Role of Private Counsel Before
International Tribunals’ in Ando et al., Liber Amicorum Judge Shigeru Oda (2002), 835–847;
Rogers, ‘The Ethics of Advocacy in International Arbitration’ in Bishop and Kehoe, The Art of
Advocacy in International Arbitration (2010), 49–66.
5)
Confer Benson, ‘Can Professional Ethics Wait: The Need for Transparency in International
Arbitration’, 3 Dispute Resolution International (2009), 78; Mosk, ‘Attorney Ethics in Interna-
tional Arbitration’, 5 Berkeley Journal of International Law Publicist (2010), 32–37. The topic was
discussed at the 2008 International Bar Association (‘IBA’) Conference in Buenos Aires – see the
programme at http://www.int-bar.org/images/downloads/confs/finalprog.pdf. The IBA Arbitra-
tion Committee in 2008 formed a ‘Task Force on Counsel Ethics in International Arbitration’
in order to investigate ‘whether the lack of international guidelines and conflicting norms in
counsel ethics undermines the fundamental protections of fairness and equality of treatment and
the integrity of international arbitration proceedings’ – http://www.ibanet.org/Article/Detail
.aspx?ArticleUid=610bbf6e-cf02–45ae-8c3a-70dfdb2274a5.
6)
Working title: ‘Professional Ethics at the International Bar’, supervised by Professor Philippe
Sands QC at University College London.
Sarvarian /
II. ICSID7
The ICSID was created by the ‘Convention on the Settlement of Invest-
ment Disputes between States and Nationals of other States’ 1966 (‘ICSID
Convention’) under the auspices of the World Bank. The Bank (created in
1945 as a lending institution for developing States) had initiated the
project in 1961 due to its own ineffectiveness as an investment dispute
settlement mediator over the course of the previous decade.8 The typical
investment dichotomy is a capital-rich investor from a so-called ‘developed
State’ investing in a resource-rich ‘developing State’ (or ‘host State’). The
ICSID infrastructure is similar to that of the Permanent Court of Arbitra-
tion, in that it is not itself a court9 but rather a facilitating institution for
arbitration within a common procedural framework.10
The underlying purpose of the ICSID was ‘to depoliticize the resolution
of investment disputes by affording both States and investors access to a
truly neutral forum.’11 Thus, a crucial facet of ICSID arbitration is the
removal of the judicial system of the host State from the dispute resolution
process.12 ICSID awards are binding upon national courts to a very high,
if not absolute, degree.13 Despite the existence of an internal mechanism
for annulment of corrupt awards,14 this necessarily places great pressure
upon the procedural integrity of the arbitral process in order to justify the
compulsoriness of its outcome.
A. Procedural Law
The most important aspect of ICSID arbitrations is that the power to
frame their procedural rules in large part lies with the parties. The sole
7)
For an overview, see Sands et al., The Manual on International Courts and Tribunals (2010),
125–156. The ICSID continuously publishes a bibliography on its website: http://icsid
.worldbank.org/.
8)
Nathan, The ICSID Convention: The Law of the International Centre for Settlement of Invest-
ment Disputes (2000), 47–50.
9)
Whilst the definitions of ‘court’ and ‘tribunal’ are not yet settled terms of art, one important
criterion for distinguishing the two is the ‘permanence’ of a court contrasted with the ‘tempo-
rariness’ of a tribunal.
10)
Nathan, supra note 8, 51–52.
11)
Shihata, ‘Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID
and MIGA’, 1 ICSID Rev.-FILJ (1986) 1–25, 4.
12)
ICSID Convention, Art. 27(1).
13)
Ibid., Art. 53.
14)
ICSID Convention, Art. 52.
Sarvarian /
source of binding positive law for all ICSID arbitrations is the Conven-
tion. The ICSID Arbitration Rules, drafted by the Administrative Council
of the Centre,15 may be varied by the parties to an arbitration except for the
provisions that reflect the binding rules of the Convention.16 Article 44 of
the Convention provides:
Any arbitration proceedings shall be conducted in accordance with the

provisions of this Section and, except as the parties otherwise agree, in
accordance with the Arbitration Rules in effect on the date on which
the parties consented to arbitration. If any question of procedure arises
which is not covered by this Section or the Arbitration Rules or any
rules agreed by the parties, the Tribunal shall decide the question.
Thus, provisions of the Convention are binding and the default position is
that the Arbitration Rules will be adopted, though the parties are free to
amend those Rules as they please unless they reflect the Convention. The
Tribunal, crucially, has the power to decide residual procedural issues. In
considering the procedural regime of ICSID arbitrations, it is consequently
necessary to bear in mind continuously the reality that although the Arbi-
tration ‘Rules’ are for the most part optional,17 unlike other international
courts and tribunals,18 an ICSID arbitral tribunal is consequently placed in
a relatively weak position vis-à-vis the parties in that it lacks the formal
power to prescribe its own procedural rules.
B. Admission Requirements
The Convention is silent concerning the representation of parties in arbi-
tral proceedings. Rule 18 of the Arbitration Rules, which is ‘derogable’,
provides:
(1) Each party may be represented or assisted by agents, counsel or

advocates whose names and authority shall be notified by that
15)
ICSID Convention, Art. 6(1)(c).
16)
In particular, Articles 47–49, 56.
17)
Schreuer, The ICSID Convention: A Commentary (2001), 669, 672–673.
18)
The European Court of Justice (‘ECJ’), however, may only propose amendments to its Rules
that must be approved by the European Council – Treaty on Functioning of the European
Union, Art. 253.
Sarvarian /
party to the Secretary-General, who shall promptly inform the

Tribunal and the other party.
(2) For the purposes of these Rules, the expression “party” includes,
where the context so admits, an agent, counsel or advocate autho-
rized to represent that party.
The representational concept of agency, originating in the beginnings of

modern international arbitration in the nineteenth century and derived
principally from the procedures of ‘inquisitorial’ or ‘civil law’ systems, is a
common feature of the procedures of international courts and tribunals.19
Its hallmark is its procedural function, whereby the agent and only the
agent may ‘represent’ the State by performing procedural acts that bind it
as a party to the proceedings.20 Counsel (or advocates), by contrast, ‘assist’
the agent but lack the power to commit their clients by their actions. Con-
sequently, agents are procedurally compulsory for States whereas counsel
are optional.
However, unlike other ‘civil’ international courts,21 agency is neither the
exclusive prerogative of States nor compulsory. Rather, Rule 18(1) requires
the parties when notifying the Tribunal and the opposing party of the
names of its representatives to also indicate clearly the scope of their
authority.22 Although parties may consequently appoint professional or lay
representatives as they wish, a leading commentator observes:
In practice, parties have nearly always been represented by lawyers.

State parties have been represented by government lawyers, lawyers in
private practice or a combination of both. Investors are nearly always
represented by lawyers in private practice although representation by
in-house counsel is not unheard of. Representatives are often specialists
19)
Valencia-Ospina, ‘International Courts and Tribunals, Agents, Counsel and Advocates’ in
Max Planck Encyclopaedia of Public International Law (2010); Rosenne, ‘The Agent in Litigation
in the International Court of Justice’ in Kaplan and McRae, Law, Policy, and International Justice
(1993), 41–70; Matheson, ‘Practical Aspects of the Agent’s Role in Cases before the Interna-
tional Court’, 1 Law and Practice of International Courts and Tribunals (2002) 467–479; Monaco,
‘Représentation et Défense des Parties Devant les Instances Internationales’ in Diez, Festschrift
für Rudolf Bindschedler (1980), 373–384.
20)
Valencia-Ospina, ibid., para. 3.
21)
Notably the ICJ, ITLOS, ECJ and ECtHR.
22)
Schreuer, supra note 17, 688 (para. 66).
Sarvarian /
in arbitration with ICSID experience. The majority of lawyers repre-

senting parties have been from the United States and some from
Europe but Latin American counsel have been retained increasingly in
more recent cases.23
In light of what seems to be the almost invariable practice of instructing

professional counsel, a binding rule to that effect may not prove controver-
sial. By amending Rule 18(1) or better still by amending the Convention
to impose an admission requirement for representatives to be members of
national bars and consequently bound by professional ethics and disci-
pline, existing practice would be transmogrified into a procedural rule.
One may question whether such a change is desirable as it would have
the effect of restricting the freedom of choice of parties that is the hallmark
of ICSID procedure. International practice, both in ICSID proceedings
and elsewhere, provides several good reasons for doing so. First, parties
should not appoint lay representatives who will not be bound by any
ethical standards of conduct whatsoever.24 Secondly, minimal standards of
professional competence and expertise should be imposed in order to
ensure that parties are able to present their cases on an approximately equal
footing. Thirdly, parties should not present the evidence of witnesses of
fact and expert witnesses to a tribunal by nominating such persons as
representatives rather than as witnesses. Fourthly, the position of employed
or ‘in-house’ counsel should be considered in light of the scepticism of
certain jurisdictions of the ability of such counsel to behave with sufficient
23)
Ibid., 688 (para. 67).
24)
See, e.g. – Philippe Gruslin v. Malaysia (Case Nos ARB/94/1 and ARB/91/3), Award
(27 November 2000), 5 ICSID Rep. 484 (2002). In two sets of proceedings, the Claimant was
self-represented. The Claimant was self-represented against a legal team that included Elihu
Lauterpacht, Freshfields solicitors and so on. The Claimant went on to apply unsuccessfully for
an annulment, refused to pay costs and even sued the World Bank in Brussels whilst reporting
ICSID and the World Bank to an international hotline for corruption. See also the fraudulent
claim of an Iranian national, one Kaveh K. Showrai, who successfully won an award posing as
‘Mr Gordon Williams’ in Gordon Williams and Islamic Republic of Iran, Award No. 342–187–3,
p. 4 (18 Dec. 1987), 17 Iran-US C.T.R. (1987) 269, 271–272. However, the Federal Reserve
Bank of New York, upon being ordered to pay out the award, discovered the fraud – Federal
Reserve Bank of New York v. Gordon Williams and Others, US District Court for the Southern
District of New York, (1989) U.S. Dist. LEXIS 2347. See also Bederman, ‘Nationality of indi-
vidual claimants before the Iran-United States Claims Tribunal’ (1993) ICLQ 119–136, 120–
121 (notes 11–12).
Sarvarian /
independence from their clients. Fifthly, persons should not be able to

serve contemporaneously as arbitrator and representative in ICSID arbi-
trations because this creates an apparent risk of inequality of arms.
Whilst the first argument may appear self-evident, it is in reality a more
contentious issue than at first sight. This is principally due to the position
of professors of law and other exclusively academic lawyers who are not
members of national bars and are consequently not subject to ethical stan-
dards of conduct in representational work before international courts and
tribunals. Before the International Court of Justice, for instance, advocacy
work is largely dominated by an elite ‘mafia’ of such professors who are
sometimes also professional advocates but other times are not.25 Before
certain European jurisdictions, such as France, academic lawyers seemingly
have rights of hearing before national civil courts despite not being quali-
fied advocates.26 An exception can thus be found expressly in the admis-
sion requirements of the European Court of Justice27 though, curiously,
not in those of the European Court of Human Rights.28
The exclusion of purely academic lawyers from rights of pleading,
though a controversial issue before other international courts and tribunals
where they are more often to be seen, is not a particularly topical issue at
ICSID tribunals simply because the great majority of representatives are
professional advocates. Consequently, excluding academics could theoreti-
cally be achieved without much controversy. However, the reasons for
doing so should nevertheless be compelling. Academic lawyers are not
bound by or indeed trained in the professional ethics of advocacy as part of
their everyday working lives. Although one could argue that that may par-
adoxically be beneficial, in that there would be fewer reactions to proce-
dural issues from a narrow, national perspective that professional counsel
sometimes resort to,29 the lack of professional discipline through member-
25)
Pellet, supra note 4, 147–161, 147.
26)
Code de la procédure civile (Version consolidée au 4 octobre 2010), Art. 414: ‘[u]ne partie n’est
admise à se faire représenter que par une seule des personnes, physiques ou morales, habilitées
par la loi’. See also Art. 416: ‘Quiconque entend représenter ou assister une partie doit justifier
qu’il en a reçu le mandat ou la mission. L’avocat ou l’avoué est toutefois dispensé d’en justifier.’
27)
ECJ Statute, Art. 20.
28)
ECtHR ‘Règlement de la Cour’ (1er juin 2010), R. 36(4)(a): ‘Le représentant agissant pour le
compte du requérant en vertu des paragraphes 2 et 3 du présent article doit être un conseil
habilité à exercer dans l’une quelconque des Parties contractantes et résidant sur le territoire de
l’une d’elles, ou une autre personne agréée par le président de la chambre’ (emphasis added).
29)
Lalive, ‘Some Threats to International Arbitration’, 1 ICSID Review-FILJ (1986), 26–10, 39.
Sarvarian /
ship of a national bar obviates such a benefit because academic lawyers do

not face the prospect of professional sanction for misconduct.30
The second argument is perhaps less obvious but no less important:
academic lawyers and other lay representatives, by definition, have no
training in forensic advocacy and potentially not much in national or
international procedural law. Notwithstanding that they often have pro-
found expertise of the substantive area of law that the case concerns, they
have not been trained in the art of pleading persuasively before a tribunal
whilst effectively engaging with myriad procedural issues. Although one
can and does necessarily learn by doing, one should not be compelled to
acquire elementary skills of advocacy in high-stakes cases before ICSID
tribunals. Professional advocates at national bars necessarily not only
receive training in the form of apprenticeships under a senior practitioner
but also gradually develop advocacy skills through low-value cases in
the lower courts of their home jurisdictions before graduating to more dif-
ficult ones. By contrast, an academic lawyer of great expertise may be
attempting to conduct his first cases in comparatively high-value cases.
Cross-examination of witnesses, for example, is a skill that requires years of
continuous practice to develop and cannot be improvised. Before the ICJ,
attempts by academic lawyers to do so have had detrimental results.31
Two objections to these reasons come to mind. Some might, and do,
argue that if parties engage academic or other lay representatives who
do not have comparable advocacy experience to professional advocates of
their seniority then the risk lies upon them. After all, it is their money and
30)
It is possible for ICSID tribunals to write to academic lawyers’ universities to report miscon-
duct – see, e.g. – ICTY Code of Conduct, Art. 47(g): ‘[a] copy of the [disciplinary] decision shall
be communicated . . . to the governing body of the university where counsel is a law professor.’
However, universities will arguably not be well-placed to handle such a report in the way that
national bars are. Specifically, they lack the expertise necessary to investigate and adjudge profes-
sional ethics concerning advocacy.
31)
As one eminent ICJ judge wrote: ‘This common law art of questioning in examination and
cross-examination of a witness is one of those skills which can only be learned by doing it. It is,
one may say with conviction, not one that the academics and professors of international law who
so often plead in the ICJ would be well advised to attempt. The few times it has been attempted
have not shown the professors at their best. Good cross-examination has indeed happened in the
ICJ but that has only been when a party has been wise enough to include in its team some expe-
rienced and proven practising counsel, often not an international lawyer at all, but who is used
to dealing with witnesses and with the art of examination and of cross-examination’ – Jennings,
supra note 5, 450.
Sarvarian /
their case that they are hazarding.32 It is suggested that this is based upon a
premise that this article rejects, namely, a narrow view of ‘fair trial’ involv-
ing only a passively impartial tribunal rather than one that actively ensures
‘equality of arms’ between the parties.33 In other words, it is of direct con-
cern to ICSID tribunals that the justice of their awards should not be
questioned by the parties or by the wider public on the ground that one
side or the other was unable to effectively put forward its case owing to an
inequality of arms. This applies a fortiori to vulnerable parties such as small,
poor and/or inexperienced parties who may, in effect, have to be protected
from themselves.34
As one experienced ICSID arbitrator, the late Professor Thomas Wälde,
wrote:
32)
E.g. – Cot, supra note 4, 839: ‘Ultimately, the decision rests with the sovereign States. As the
WTO correctly put it, sovereign States are free to organise their representation and the defence
of their interests as they wish. The ultimate sanction is a case lost through negligent choice of
counsel.’
33)
Wälde, “‘Equality of Arms” in Investment Arbitration: Procedural Challenges’ in Yannaca-
Small, Arbitration under International Investment Agreements (2010), 161–188, 179–180. Confer
the case of European Communities – Regime for the Importation, Sale and Distribution of Bananas
(WT/DS27/AB/R), Appellate Body Report (9 September 1997), paras. 4–12. Objection made
to the representation of Saint Lucia by two private counsel was rejected on the ground that there
was no rule restricting State representation and, moreover, ‘we also note that representation by
counsel of a government’s own choice may well be a matter of particular significance – especially
for developing-country Members – to enable them to participate fully in dispute settlement
proceedings’ – ibid., para. 12.
34)
Corfu Channel – Cot. See also a narrative given on Albania’s first contact with the ICSID in
the Tradex arbitration in Sands, Lawless World (2006), 118: ‘This turned out to be Albania’s first
real contact with ICSID. In the heady days after the demise of Hoxha’s regime, Albania had been
persuaded to join ICSID and take steps to protect the tide of valuable foreign investments that
were promised to be heading Albania’s way. To encourage foreign investment, Albania was told
it would be necessary to promulgate various national laws and investment protection treaties.
Investors would not come to Albania if they had to go to the local courts, and they should have
the right to arbitrate any disputes outside Albania and under the ICSID rules. In this way, so the
theory ran, foreign investment would contribute to Albania’s economic development. For a
country that had had virtually no contact with the outside world for two generations, this was a
rude change. . . . The Albanian President was surprised – to say the least – that his country could
be brought before an international tribunal. We had to explain that it was not he personally who
was being sued. Plainly, no one had taken the trouble to explain to Albania exactly what it was
signing up to, after nearly fifty years of isolation. Ironically, Albania was the first country to be
sued at the International Court of Justice in the Hague . . . Albania lost, and the Corfu Channel
case has remained engraved on the memories of Albanians as a great injustice, their last brush
with international litigation until the Tradex case came along.’
Sarvarian /
Both States and Claimants may have difficulties in obtaining the qual-
ity of legal representation that the by-now highly specialized field of
international investment arbitration requires. Ideally, the expertise
deployed will include both public international law, international
arbitration (and international judicial procedure in a wider sense), and
comparative public/administrative law. It will go beyond rules and
concepts that may be academically known and researchable, to include
the much more arcane areas of the advocacy and politics of investment
arbitration, e.g., arbitrator and chair selection; proclivities of appoint-
ment institutions; and personal, professional, institutional, and philo-
sophical linkages and preferences. A party, Respondent, or Claimant
not served by professionals experienced in this newly emerging field is
quite likely to be at a considerable handicap. There are awards which
indicate that one of the parties (or both) was unable to mount a rea-
sonably competent claim or defense. This applies both to junior com-
panies with no prior foreign investment experience (arguably the most
frequent Claimants) and small developing countries with no prior
Respondent experience.
Junior companies, in particular, will often have stumbled in their
first foray abroad due to lack of international business experience.
They may stumble equally when choosing advocates. Without suffi-
cient funds for litigation, they may be limited to those firms or inde-
pendent practitioners keen on but not prepared for international
arbitration and therefore ready to accept contingent-fee arrangements.
Governments can be handicapped when relying exclusively upon their
internal legal services, in particular when, unlike the services of fre-
quent Respondents such as, e.g., the United States, Iran, Canada,
Mexico, Argentina, they lack experience.35
Thus, it may be seen that competent legal representation and equality of

arms are intimately linked. Moreover, a wide range of skills – including a
strong expertise in forensic advocacy and in comparative procedural law –
is required in order to advocate effectively before ICSID tribunals.
35)
Wälde, supra note 33, 161–188, 179.
Sarvarian /
Professor Wälde cites two compelling examples. In Generation Ukraine,36

the Claimant (a US company) was represented by Irish barristers whereas
the Respondent was represented by employed government lawyers as well
as private Ukrainian lawyers.37 The following extract from the Tribunal’s
award is revealing:
Counsel for the Claimant has suggested that “there’s more documenta-
tion in this particular ICSID reference than has ever been in any previ-
ous ICSID reference.” The Tribunal is not certain that such an
affirmation is verifiable; it is certainly true that the written evidence
and submissions in this case have been voluminous. But the Claim-
ant’s written presentation of its case has also been convoluted, repeti-
tive, and legally incoherent. It has obliged the Respondent and the
Tribunal to examine a myriad of factual issues which have ultimately
been revealed as irrelevant to any conceivable legal theory of jurisdic-
tion, liability or recovery. Its characterisation of evidence has been
unacceptably slanted, and has required the Respondent and the Tribu-
nal to verify every allegation with suspicion. (For example, the Claim-
ant’s confident assertions of its mobilisation of necessary financing do
not match the evidence of Crédit Lyonnais Ukraine’s expression of
interest . . . The fact that the author of that letter was announced as a
witness, that a document purporting to be his written statement was
produced, but that no signed version was forthcoming, and that he
declined to appear before the Tribunal, has hardly helped matters.)
The Claimant’s position has also been notably inconsistent. For
example, it alleged that “we established Heneratsiya in anticipation of
the fact that the Bilateral Investment Treaty allowed us to function in
Ukraine through a local subsidiary.” But Heneratsiya was formed in
1993, and Mr Laka ultimately, on the last day of his testimony, revealed
that he had not become aware of the BIT until a U.S. Embassy official
advised him about it at the time of preparing the Claimant’s case before
the Chamber of Independent Experts – which was in 1999.
Moreover, the Claimant’s presentation of its damages has reposed
on the flimsiest foundation . . . there is not one item of direct evidence
36)
Generation Ukraine, Inc. v. Ukraine (Case No. ARB/00/9), Award (16 September 2003).
37)
Ibid., para. 2.
Sarvarian /
of a single expenditure . . . the Claimant’s approach to filling that evi-

dentiary gap has been singularly unimpressive . . . And yet there are
numerous documents in the file that refer to previous examinations of
the Claimant’s costs; somehow the relevant annexes, notwithstanding
the plethora of the Claimant’s documentation, are missing . . .
The Claimant’s presentation has lacked the intellectual rigour and
discipline one would expect of a party seeking to establish a cause of
action before an international tribunal. This lack of discipline has
needlessly complicated the examination of the claim.
Even at the stage of final oral submissions in March 2003, counsel
for the Claimant relied on two ICSID awards without mentioning
that they had been partially annulled. While the Tribunal was fortu-
nately aware of that limitation on the pertinence of those awards, this
was due to the happenstance of the arbitrators’ personal knowledge.
The Tribunal assumes in counsel’s favour that he was unaware of the
annulments; that is bad enough, and does no credit to the Claimant.38
The episodes described in the award point if not to dishonesty on the part
of the Claimant’s representation, then at the least to gross incompetence.
Moreover, in the CDC Group case39 even an outsider’s reading of the award
is strongly suggestive of an inability of the Republic of the Seychelles to
adequately defend itself.40 In particular, its Counter-Memorial was sloppily
drafted with elementary procedural errors that required it to be re-drafted
and re-filed,41 it made a bizarre jurisdictional argument that was ultimately
withdrawn42 and it called witnesses at the oral hearing who gave testimony
adverse to its own case.43 The Seychelles lost the case, with awards and costs
well in excess of £2,000,000.44
38)
Ibid., para. 24.
39)
CDC Group Plc v. Republic of the Seychelles (Case No. ARB/02/14), Award (17 December
2003).
40)
Its representative is named as its Attorney-General, thus indicating that it relied exclusively
upon its internal legal service, whereas the Claimant (a British company) was represented by a
solicitor from the highly experienced and expensive law firm of Allen & Overy – ibid., 1.
41)
Ibid., 9 (paras. 25–26).
42)
Ibid., paras. 21, 34.
43)
Ibid., paras. 34–42.
44)
To contextualise such a sum in local economic terms, according to World Bank figures the
government revenue of the Seychelles in the year 2007 was 38.6% of a GDP of US $910,000,000,
Sarvarian /
Such cases illustrate two pressing needs, namely, professional competence

as an admission requirement to appear before an ICSID tribunal and a
mechanism to provide poor or inexperienced parties with assistance in order
to instruct competent representation. Such tools already exist at interna-
tional criminal tribunals45 and even, in a much more limited fashion, at the
ICJ.46 However, the ‘Advisory Centre on WTO Law’ provides an intriguing
middle option of legal aid whereby either internal or external counsel are
provided to indigent States for advisory and representational services.47 It is
suggested that the creation of a ‘list system’ consisting of counsel who are
professionally qualified members of national bars and who have sufficient
competence in general international law, international investment law,
international procedural law and international forensic advocacy would be
a useful and feasible project. Additionally, the provision of a legal aid mech-
anism – perhaps combined with a pro bono ethical requirement for counsel,
whereby they would each be required to undertake a certain small percent-
age of cases at a subsidised rate for indigent clients – would be a welcome
development in order to ensure that all parties, not only the wealthy and the
experienced, may obtain access to good legal representation.
The third reason for the professionalisation of ICSID representation
concerns the handling of testimony, which is arguably the most contamin-
or US $351,260,000 – ‘Seychelles at a glance’, http://devdata.worldbank.org/AAG/syc_aag

.pdf.
45)
The vast majority of defendants before the ICTY, ICTR, SCSL and ICC are indigent. Thus,
they are reliant upon the ‘list’ system from which legal aid counsel may be selected. Additional
admission requirements for these advocates are imposed beyond what is required of counsel
privately retained by defendants, namely, ‘established competence in criminal law and/or inter-
national criminal law/international humanitarian law/international human rights law’ and ‘at
least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other
capacity, in criminal proceedings’ – Rule 45(B), ICTY Rules of Procedure (IT/32/Rev.41),
28 February 2008. The explanation for the additional requirements for legal aid counsel is likely
to be found in the jurisprudence of the UN Human Rights Committee (‘UNHRC’) interpreting
Article 14(3)(d) ICCPR. Although there is some ambiguity in the Committee’s reasoning, it
has seemingly imposed a stricter standard upon parties to the ICCPR to ensure ‘competent
counsel’ where they are provided by the State through legal aid as opposed to privately retained
counsel – Joseph et al., The International Covenant on Civil and Political Rights: Cases, Materials,
and Commentary (2005), 443–446.
46)
Namely, the ‘Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes
Through the International Court of Justice’ – Zimmerman et al., The Statute of the International
Court of Justice: A Commentary (2006), 1396–1398.
47)
See the ‘Agreement establishing the Advisory Centre on WTO Law’ 2001 as well as the Advi-
sory Centre website at http://www.acwl.ch/e/about/about_us.html.
Sarvarian /
able form of evidence. Under the current, laissez-faire regime parties have
the option to nominate their ‘experts’ or indeed their lay witnesses or ‘wit-
nesses of fact’ as representatives rather than as witnesses. Before the Tribu-
nal, as at the ICJ48 and (for States) at the ECJ,49 parties are likewise
permitted to designate persons whom they wish to supply technical exper-
tise to the Tribunal as representatives rather than as expert witnesses. In
one case before the Permanent Court of International Justice, such a per-
son was termed conseil technique or ‘technical adviser.’50 There are two
opposing views on this practice. Proponents argue that it can often be
more effective and efficient to present the evidence directly to the Tribunal
through submissions (whose members may in any case question the expert
qua representative)51 rather than through the medium of witness examina-
tion. Opponents opine that the expert is in effect giving evidence rather
than arguments and should consequently be required to do so under oath
with the opportunity for the opposing party to test his credibility through
cross-examination.52
The handling of testimonial evidence (especially witness examination) is
a point of sharp divergence between common law and civil law procedures.53
48)
ICJ Statute, Art. 42.
49)
ECJ Statute, Art. 19. See also Lasok, European Court of Justice: Practice and Procedure
(1984), 70.
50)
Diversion of Water from the River Meuse, Series C, No 81 (1937), 218–220, 331–369, 331.
51)
Arbitration Rules, Rule 32(3): ‘The members of the Tribunal may, during the hearings, put
questions to the parties, their agents, counsel and advocates, and ask them for explanations.’ This
provision is substantively identical to the ICJ Rules of Procedure, Art. 61(2).
52)
For an example of the situation in converse, see Islamic Republic of Iran v. United States of
America (Cases Nos. A3, A8, A9, A14 and B61), 27 April 2006, 38 Iran-US C.T.R. (2003),
169–170, paras. 3–5, where the Claimant objected to the nomination by the Respondent of five
Ernst & Young and LBC International employees as expert witnesses after they had already
addressed the Tribunal as its representatives. The Respondent asserted that ‘it has met all of the
requirements provided for in the Tribunal Rules with respect to calling witnesses . . . if it is not
allowed to present its evidence [in this way] . . . it will be fundamentally deprived of the ability to
present its case because evidence presented under oath subject to cross-examination carries
greater weight.’ The Tribunal, which did not give a reasoned decision, seemingly adopted a prac-
tical compromise by ordering that all of the persons who had appeared as representatives ‘may
appear at the Hearing to make their statements, but they will not make the declaration [of wit-
nesses]. They will, however, be subject to cross-examination by the Claimant.’ The weight of
their statements was, however, likely to have been diluted by their earlier participation as repre-
sentatives for the Respondent with the consequent proximity to its case.
53)
Sinclair, ‘Differences in the Approach to Witness Evidence Between the Civil and Common
Law Traditions’ in Bishop and Kehoe, supra note 4, 23-48. Sandifer, Evidence before International
Tribunals (1975), 288–343.
Sarvarian /
The crux of this particular issue, however, is not so much the opportunity
to cross-examine the expert (though that is also clearly a major factor)54
but rather the credibility of the expert’s statements to enable the Tribunal
to determine the truth. Of particular relevance is the recent judgment of
the ICJ in the Pulp Mills case insofar as the credibility of competing expert
‘evidence’ called by both parties was central to the determination of the
dispute in which, insofar as it concerned the compliance by Uruguay with
its substantive duties owed under international environmental law.55 Dur-
ing the proceedings, the parties produced detailed submissions in response
to a question posed by Judge Bennouna concerning the claim by Argentina
that its experts were ‘independent’ experts and ipso facto of greater reliabil-
ity than those for Uruguay.56 On the issue of the ‘independence’ of the
experts, the Court held that:
The Court has given most careful attention to the material submitted
to it by the Parties, as will be shown in its consideration of the evi-
dence below with respect to alleged violations of substantive obliga-
tions. Regarding those experts who appeared before it as counsel at the
hearings, the Court would have found it more useful had they been
presented by the Parties as expert witnesses under Articles 57 and 64
of the Rules of Court, instead of being included as counsel in their
respective delegations. The Court indeed considers that those persons
who provide evidence before the Court based on their scientific or
technical knowledge and on their personal experience should testify
before the Court as experts, witnesses or in some cases in both capaci-
54)
As the late Sir Arthur Watts expressed it, designating an expert as ‘counsel’ or as ‘expert wit-
ness’ is a matter of ‘forensic tactics’ – Watts, ‘Burden of Proof, and Evidence before the ICJ’ in
Weiss, Improving WTO dispute settlement procedures: issues and lessons from the practice of other
international courts and tribunals (2001), 289, 299.
55)
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010,
paras. 165–168. For criticism of the Court’s approach, see the Joint Dissenting Opinion of
Judges al-Khasawneh and Simma, paras 6-17; Dissenting Opinion of Judge ad hoc Vinuesa,
paras 92-94; Declaration of Judge Yusuf, paras 1-14. For more cautious views, see the Separate
Opinion of Judge Greenwood, paras 27-28; Separate Opinion of Judge Keith, paras 9-11; Sepa-
rate Opinion of Judge Cançado Trindade, paras 148-151. See also United States – Continued
Suspension of Obligations in the EC – Hormones Dispute (WT/DS320/AB/R), Appellate Body
Report (16 October 2008), paras. 422–484, esp. para. 441.
56)
Ibid., Verbatim Record (22 September 2009), 59. For the parties’ arguments, see the Verba-
tim Record (24 September 2009), 33–43; Verbatim Record (29 September 2009), 22–27.
Sarvarian /
ties, rather than counsel, so that they may be submitted to questioning

by the other party as well as by the Court.57
Whilst this obiter dictum is a polite request to future litigants before the
Court58 rather than a declaration of law, which requires amendment of the
ICJ Rules of Procedure,59 it clearly illustrates that expertise submitted as
evidence rather than as submissions will ipso facto be more credible, and
thus be more persuasive, from the perspective of the ICJ.
Even more fundamentally, experienced judges and arbitrators at inter-
national courts and tribunals are aware of the influence, ranging from hon-
est mistakes to intentional manipulation, that parties can exert upon the
testimony of witnesses.60 After all, they themselves often have extensive
experience as counsel and are consequently well-versed in the realities of
litigation. The closer that a witness is to a party, the less likely that his evi-
dence will be credible and the more difficult the Tribunal’s task of truth-
discovery becomes. Moreover, the possibility of circumventing the problem
by adopting an inquisitorial procedure whereby the Tribunal could itself
call and interrogate witnesses with minimal involvement from the parties
is circumscribed by the general weakness of the ICSID tribunals’ proce-
dural powers and their corresponding reliance upon the parties to produce
evidence.61 The true solution lies in excluding expert witnesses and wit-
nesses of fact from being appointed as counsel, thereby increasing the
57)
Ibid., Judgment, para. 167.
58)
This was not the first occasion where the Court had had to deal with such difficulties. Repre-
sentatives before the Court have in the past referred to personal knowledge in the course of
submissions – see, e.g. – Corfu Channel Case (United Kingdom v. Albania) (Merits), I.C.J. Rep.
[1949], 4, Vol. III, 598–601, 609–611, 614; Armed Activities on the Territory of the Congo (Dem-
ocratic Republic of the Congo v. Uganda) (Merits), Verbatim Record (18 April 2005), 42, 53. A
particularly unfortunate incident occurred in the Case Concerning Elettronica Sicula S.p.A. (ELSI)
(United States v. Italy) (Merits), I.C.J. Rep. [1989], 15, 19 (para. 8) and Vol. III, 300–304.
59)
ICJ Statute, Art. 30(1): ‘The Court shall frame rules for carrying out its functions. In par-
ticular, it shall lay down rules of procedure.’
60)
For vivid examples from commercial arbitration and English cases, see Veeder, ‘The Lawyer’s
Duty to Arbitrate in Good Faith’, 18(4) Arbitration International 431–451, 442–447.
61)
See the ICSID Convention, Art. 43(a) (reproduced in the Arbitration Rules, Rule 34(2)(a)):
‘The Tribunal may, if it deems it necessary at any stage of the proceeding: call upon the parties to
produce documents, witnesses and experts’ (emphasis added). However, it appears that at least
one tribunal has interpreted this provision rather broadly in appointing an expert ex proprio motu
– Schreuer, supra note 17, 652 (note 42).
Sarvarian /
distance between the parties and their evidence and allowing each side the
opportunity to test testimonial evidence through cross-examination.
The issue of employed or ‘in-house’ counsel appearing as representatives
before international courts and tribunals is a contentious issue. There is a
divergence on the one hand between English and American lawyers, for
whom this is a standard practice, and European lawyers from civil law
jurisdictions in which this is strictly forbidden. The cases of A.M. &
S. Europe62 and Akzo Nobel,63 addressing the legal principle of professional
secrecy (also known as confidentiality or ‘legal professional privilege’) of
lawyer-client communications in the European Union, exclude employed
counsel from its scope on the ground it is not an accepted practice in all
European jurisdictions.64
It is suggested that the pessimism of certain European jurisdictions
towards the ‘independence’ of employed counsel who are by definition
dependant for their entire livelihood (unlike their counterparts employed
in law firms or self-employed in sets of chambers) upon the goodwill of
their clients is justified.65 Extending the issue by analogy to the litigation
context, it would require exceptional strength of character for an employed
advocate to hazard his entire professional career on a point of ethical prin-
ciple by refusing to compromise his professional standards of conduct to
please his client through remaining silent about or actively collaborating in
abusive practices. Although there is clearly a risk that counsel employed by
law firms or self-employed barristers will likewise be suborned into profes-
sional misconduct, it is suggested that that likelihood is reduced when
counsel does not face the prospect of losing his entire professional liveli-
hood in the event of his refusal to comply.
Finally, there is controversy concerning the propriety of individuals
serving as arbitrator in one arbitration whilst simultaneously serving as
representative in another arbitration.66 There are two reasons for imposing
62)
Case 155/79 A.M. & S. Europe Ltd v. Commission [1983] Q.B. 878.
63)
Case C-97/08 Akzo Nobel NV and Others. v. Commission [2007] ECR II-05049; Case 550/07
P Akzo Nobel Chemicals Ltd and Another v. Commission, Judgment (14 September 2010), Euro-
pean Court of Justice (Grand Chamber).
64)
A.M. & S., supra note 62, para. 21.
65)
Akzo Nobel, supra note 63, paras. 49–51.
66)
There is a good analogy to be drawn with the situation involving judges ad hoc before the ICJ,
which led to the adoption of Practice Directions VII and VIII to sharpen the boundary between
Bench and Bar – see Rosenne, ‘International Court of Justice: Practice Directions on Judges Ad
Hoc; Agents, Counsel and Advocates; and Submission of New Documents’, 1 LPICT (2002),
Sarvarian /
an admission requirement that excludes currently serving arbitrators as

well as former arbitrators for a certain period of time from serving as rep-
resentatives. An appearance of inequality of arms results from the ability of
parties to retain arbitrators as representatives because those arbitrators
inevitably acquire – from their position as arbitrator – ‘insider knowledge’
concerning the mentalities and proclivities of fellow arbitrators. Thus,
there is a significant tactical advantage to a current arbitrator appearing
before a colleague in another arbitration in that he will appear to have a
much deeper awareness of that individual’s personality than will opposing
representatives. Parties will inevitably feel that, to level the playing field,
they must all engage representatives who are also arbitrators. Such a prac-
tice will inevitably lead to allegations of nepotism or other forms of cor-
ruption in the arbitral process. Furthermore, another compelling reason is
the potential for ‘issue conflicts’67 whereby an arbitrator hearing argument
on a legal issue in one arbitration may appear as a representative and argue
on that same legal issue in another arbitration. The possibility exists that
such an arbitrator-cum-representative may be alleged to have manipulated
his decision as arbitrator and/or his pleadings as representative.
Thus, based upon these five arguments, this article suggests that the
introduction of formal admission requirements for the representation of
parties before ICSID tribunals is not only desirable but necessary. Addi-
tionally, creative thinking is required in order to address what appears to be
a frequent situation of severe inequality of arms between experienced,
wealthy parties and new, indigent ones. Whilst the latter issue can only be
addressed in a meaningful way (for example, by the creation of a ‘list sys-
tem’ of counsel for assignment to indigent parties as suggested above) by
the Administrative Council of the Centre, the former problem can be
solved by either the Council or parties to arbitrations. Article 44 of the
223–245, 238; Watts, ‘New Practice Directions of the International Court of Justice’, 1 LPICT
(2002), 247–256, 254.
67)
Section C. 2 (c), infra. See e.g. – the participation of Mr Bernardo Cremades as counsel for
the Claimant in Compañia de Aguas del Aconquija S.A. and Vivendi Universal (formerly Compag-
nie Générale des Eaux) v. Argentine Republic (ICSID Case No. ARB/97/3), Decision on Annul-
ment (3 July 2002) in a case that concerned the same legal issue upon which he had himself sat
as arbitrator in Lanco v. Argentina (ARB 97/6) Preliminary Decision on Jurisdiction, 40 ILM
457 (2001) – a precedent that featured heavily in the Vivendi decision concerning jurisdiction.
In essence, Mr Cremades was as counsel challenging his own findings as arbitrator – conceivably
a basis for challenge were he to sit again as arbitrator on the same legal issue. Although arbitral
neutrality is the crux of the matter, it is his participation as counsel that engages it.
Sarvarian /
ICSID Convention provides that the Arbitration Rules shall be adopted by

default unless the parties decide to vary those provisions that are optional.
Thus, were the Council to amend Rule 18 so as to impose the admission
requirements proposed it appears likely that the amended rule would be
followed in the majority of cases – particularly as parties almost invariably
retain professional counsel in current practice. Moreover, even without this
change to the default position, parties to arbitral proceedings may amend
Rule 18 to impose admission requirements as between themselves for their
own arbitration. This article seeks to demonstrate that it would be in par-
ties’ best interests to have such requirements. Unfortunately, since ICSID
tribunals only have a residual power to decide procedural lacunae they
cannot impose admission requirements upon parties if the arbitration rules
provide otherwise.
C. Ethical Standards
As has already been observed, there currently do not exist any common rules
of ethical conduct binding upon representatives before ICSID tribunals.
The purpose of this section is to demonstrate that this is an important lacuna
that needs to be addressed. In examining select issues that engage basic ethi-
cal principles with reference to ICSID jurisprudence, one may conclude that
there is an unacceptable frequency of serious misconduct amongst ICSID
representatives. The reason is obvious: the stakes at issue, financial and polit-
ical, bring great pressure to bear upon representatives to engage in all man-
ner of misconduct in order to achieve victory at all costs. One may also
speculate, based upon the number of incidents that reach the public domain
whether in official documents or by anecdotal reporting, on the number of
abuses that may well occur undetected. Whilst this section principally
addresses misconduct by the representation of the parties, the possibility of
misconduct by amici curiae representatives should not be discounted.68
The following commentary indicates some of the types of misconduct
that have already occurred, and why:
While particular types of litigation misconduct may more frequently

be engaged in by States, one needs to bear in mind that a good deal of
68)
E.g. – collusion between non-governmental organisations and governments to pressure
Claimants in Wälde, supra note 34, 177–178; Biwater-Gauff v. Tanzania (Case No. ARB/05/22),
Procedural Order No. 3 (29 September 2006), paras. 135–165.
Sarvarian /
such misconduct can be, and at times is, committed by private parties.
Forgery and concealment of documents, illegal surveillance of com-
munications (mail, phone, e-mail, and computer hacking), intimida-
tion of the participants in arbitration (arbitrators, party representatives,
counsel, experts and witnesses), lies, and false testimony are not reserved
for States only. Arbitration against or between business oligarchs in
countries with an underdeveloped system of ‘rule of law’ seems often
to involve the use of private detectives to spy on and sometimes visibly
follow arbitrators, either to intimidate them or to find evidence for
suspected corruption; eavesdropping; threatening witnesses; and forg-
ery, including forged ‘evidence’ of arbitrator corruption.
But some governments, particularly in authoritarian systems with
weak ‘rule of law’, find it difficult to refrain from using the many
means at their disposal to frustrate the arbitration or steer it in their
favor. Pierre Lalive noted that a State or State-controlled entity may
have ‘difficulties to accept a basic tenet of arbitral procedure, i.e. the
principle of equality of the parties.’ Politically, investment disputes are
sensitive, and they may involve actions by a new government to dis-
own or frustrate agreements made by prior governments and strong
political condemnation of an earlier government’s dealings with for-
eign businesses. They may involve the application of public policies
important to the government. A loss of such an international arbitra-
tion claim can be, therefore, politically very embarrassing. The govern-
ment, and the particular politicians and civil servants responsible, will
therefore be under immense pressure not to lose – at least not during
their tenure.
Some governments are particularly prone to deploying the powers
of the State in internal disputes, e.g., police, security services, govern-
ment-controlled press and mass campaigning, tax auditing, environ-
mental compliance control and permitting, travel restrictions, control
over postal services, telephones, now Internet and e-mail, and the jus-
tice system (prosecution, courts, bailiffs). Accordingly, there is a cer-
tain political logic in the use of such services in investor disputes seen
by the Respondent government as creating an internal or external
political risk.69
69)
Wälde, supra note 33, 162–163.
Sarvarian /
Thus, one should be under no illusions that there is not only a serious
problem concerning the willingness of certain parties to respect funda-
mental principles of procedural equality but that such parties are willing to
go to extreme lengths to subvert those principles. The first compelling rea-
son for the urgent introduction of rules of ethical conduct to ICSID arbi-
trations is to deter flagrant misconduct by representatives, namely, abuses
that cannot be justified or excused under any system of justice worthy of
the name.
There is, however, another reason why such ethical standards are
required – less obvious perhaps, but no less important. There are sharp
divergences amongst professional representatives, hailing from different
national traditions of legal procedure and forensic advocacy, concerning
the propriety of particular practices. Moreover, even within a single juris-
diction professionals divide into different schools of thought concerning
fundamental principles of their ‘own’ professional ethics.70 These differ-
ences, honestly held and honestly argued by persons of integrity and repu-
tation, nevertheless create procedural differences in the conduct of parties’
representation that can potentially erode fair trial standards. It is often
said, with some justice, that a great dividing line between counsel is their
professional training in a common law or ‘adversarial’ jurisdiction as con-
trasted with a civil law or ‘inquisitorial’ one. For instance, the handling
of testimonial evidence whereby the common law rules of oral interroga-
tion are unknown in civil law jurisdictions for the simple reason that wit-
ness interrogation is generally tasked to judges. However, this is by no
means the only division; there is, for example, a highly contentious differ-
ence between the nominally ‘common law’ jurisdictions of England and
Wales and the USA (allowing of course for variations across state and fed-
eral jurisdictions) wherein American rules permitting ‘witness proofing’,
70)
A simple, yet illustrative, example is the hallmark English ‘cab rank principle’ which provides
that a barrister may not solicit or select clients but rather, like a cab in a rank, must accept any
brief (with certain important exceptions) that comes to him regardless of his opinion of the
prospective client – Code of Conduct of the Bar of England and Wales (8th Edition, 18 Septem-
ber 2004), paras. 601–606. The rationale for this ancient rule is a deep-seated belief that all cli-
ents, whatever their creed, should have access to counsel in a free country; however, despite this
binding ethical principle it is well-known that certain English barristers are of the opinion that
‘they will only work for good causes’ – Brownlie, ‘The Perspective of International Law from the
Bar’ in Evans, International Law (2003), 11–14, 14.
Sarvarian /
‘witness prepping’ or ‘witness coaching’ and the English rules that strictly
forbid the practice.
Thus, one can clearly see the potential even in these rudimentary exam-
ples for any number of situations wherein representatives from different
national traditions, with different rules and customs, may object to one
another’s professional conduct from simple misunderstandings or ideo-
logical convictions. In order to promote fair trial standards, it is conse-
quently imperative that common rules of conduct are clearly prescribed
and adhered to by the representation of both sides. As will be seen in this
section, it can be impossible to obtain consensus amongst professional
advocates with fundamentally opposed philosophies about their roles and
duties. The temptation will be to follow the approach of the Hague Prin-
ciples and other instruments,71 namely, to distil the lowest common
denominator from these opposing views whilst remaining silent on the
truly contentious issues. It is suggested that this fails to solve the problem,
which requires the imposition of strict standards of conduct. This article
argues that that rigour must be based upon the definition of an advocate as
an autonomous servant of justice.
1. Fundamental Principles
The discipline of the professional ethics of forensic advocacy stems from a
basic philosophical problem, namely, the definition of the role of the advo-
cate and, from that, a hierarchy of basic duties.72 There are, broadly speak-
ing, three philosophical views concerning the role and basic duties of an
advocate. The first view is that an advocate’s role is to persuade the judge of
the justice of his client’s cause. Thus, an advocate’s first loyalty is owed to
his client except where that loyalty is specifically displaced by rules of pro-
fessional ethics. The second view is that an advocate’s role is to act as a
71)
Hague Principles, Principle 2.1 (‘Fair Administration of Justice’): ‘Counsel has a duty of
loyalty to his or her client consistent with a duty to the international court or tribunal to con-
tribute to the fair administration of justice and the promotion of the rule of law.’ This Principle
is virtually identical to Article 3 (‘Basic Principles’) of the ICTY Code of Conduct for Defence
Counsel. Confer CCBE Code of Conduct, Art. 1.1 (‘The Function of the Lawyer in Society’);
Union Internationale des Avocats ‘Turin Principles of Professional Conduct for the Legal Profes-
sion in the 21st Century’, ‘The Lawyer’s Role’; Caribbean Court of Justice Original Jurisdiction
Rules 2006, r.4.4 (‘Duties of Attorneys-at-law or Agents’); SCSL Code of Conduct, Art. 8(A).
72)
American Bar Association, Annotated Model Rules of Professional Conduct (2007) (Sixth
Ed.), 1–2.
Sarvarian /
facilitator of justice by espousing his client’s cause. Hence, his first loyalty
is owed not to the client but to the court – again, subject to specific ethical
rules to the contrary. The third view is that an advocate is a servant of the
State and, as such, owes his first loyalty to the State and its laws.
In this respect, there is a sharp difference between American, European
and Asian conceptions of advocacy. The American view reflects the first, in
which an advocate’s role is to promote zealously his client’s cause.73 This
conception places great weight upon the role of the court as arbiter, so that
it is not for the advocate to act as a facilitator in the discovery of truth but
rather for the court to distil the truth from the competing views advanced
by the parties through counsel. Victory is consequently defined as the per-
suasion of the court of the subjective truth of the client’s cause rather than
its discovery of the objective truth of the case. American legal ethics, con-
sequently, subordinate the advocate to the client in myriad ways.
The European philosophy, to the extent that one may speak of a single
philosophy in light of national differences,74 conceives of the advocate as
73)
Ibid., 2, 305–306: ‘a lawyer acting as an advocate . . . has an obligation to present the client’s
case with persuasive force. Performance of that duty while maintaining the confidence of the
client, however, is qualified by the advocate’s duty of candor to the tribunal.’ See also Terry, ‘An
Introduction to the European Commmunity’s Legal Ethics Code’, 7 Georgetown Journal of Legal
Ethics (1993–1994), 1–87, 32, 46–51.
74)
See, e.g. – the English cases of Vernon v. Bosley (No 2) [1999] QB 18 (Stuart-Smith and
Thorpe LJJ, Evans LJ dissenting; see also Vernon v. Bosley (No 1) [1997] 1 All ER 577, in which
counsel were held to have made a ‘serious error of judgement’ through an ‘over-technical con-
struction’ of the Code of Conduct in non-disclosure to the Court notwithstanding the ‘overrid-
ing duty’ that English barristers owe to the court over their duty to their clients – Veeder, supra
note 61, 436. Another example is the assignment of counsel incident in Prosecutor v. Milošević
(IT-02–54), ‘Decision on Assigned Counsel’s Motion for Withdrawal’ (7 December 2004), para.
5 where English barristers assigned by the Trial Chamber as defence counsel were rejected by the
defendant and, in applying to the Court for permission to withdraw, averred that to continue
would infringe their ethical duties to their client (as he did not wish to have them) under both
ICTY and English ethics: ‘The Order of the Trial Chamber to assign Counsel to an unwilling and
uncooperative Accused imposes an external pressure upon court assigned counsel that compro-
mises their professional integrity, and is contrary to Article 10 of the ICTY Code, as well as
provisions of the Code of Conduct of the Bar of England and Wales.’ In the film documentary
Milosevic on Trial (2007), the senior assigned counsel (Mr Steven Kay QC) spoke even more
directly: ‘He does not want us as counsel and it is our duty to fight for that for him. It doesn’t
change because the court appoints you that they can somehow override his rights, your duties to
him, because you’re a court-appointed lawyer. What would they have made of that in Nurem-
berg? For God’s sake, it just doesn’t make sense, it’s humpty-dumpty.’ Still another example,
again involving another criminal defence barrister, may be seen in the withdrawal of Mr Karim
Khan (who cited Milošević) in the Taylor trial at the SCSL – note 141, infra.
Sarvarian /
an autonomous being from his client. The advocate exists to assist the
court in its truth-discovery process and it is in the furtherance of that mis-
sion that an advocate pleads his client’s cause. The advocate is an interme-
diary between the court and the client and must not be suborned by his
client into distorting the pursuit of objective truth. Thus, European legal
ethics embody a more patriarchal and aloof relationship between an advo-
cate and his client and vest the advocate with greater autonomy than his
American counterpart75 whilst insisting that he exercise it independently
and objectively.
An Asian, notably Chinese, view is that an advocate exists to serve the
State. In theocratic States such as Iran this is also the case because of the
assumption that as the State derives its authority from God so does an
advocate – as a Muslim – manifest his first loyalty to God through the
State. This conception of an advocate’s role is essentially political. Confu-
cian, Legalist and Communist Chinese philosophies, positing justice as the
maintenance of social order rather than the search for truth, required advo-
cates to collaborate in this mission. The State, in other words, is justice.
This view is a hallmark of States that view the judicial process as a subordi-
nate, rather than a separate and equal, manifestation of the political pro-
cess. Such systems’ legal ethics consequently prioritise an advocate’s first
duty to the laws of the State.76
One may see that, for advocates who hail from such radically different
legal cultures, arriving at a consensual view of an advocate’s first duties is
impossible. Consequently, the only other method of achieving a uniform
rule is to impose one regardless of these differences. This is, to say the least,
politically difficult yet unavoidable. This article, in its critique of ethical
principles, suggests a fourth formulation:
An advocate owes his first duty to justice, his second duty to the inter-
national court or tribunal and his third duty to his client. Any conflict
between these duties is resolved in this order.
This proposition is, perhaps inevitably in light of the author’s own back-
ground, a modification of the European tradition which, for historical
75)
Terry, note 73, supra.
76)
Law of the People’s Republic of China on Lawyers (1996) (translated by the Legislative Affairs
Commission of the Standing Committee of the NPC of the PRC), Art. 3.
Sarvarian /
reasons, is pre-eminent in the international judicial system. Whilst whole

treatises can and have been written about epistemology, suffice it to say
that objective truth is assumed to exist and that procedural justice in a
court or tribunal exists to promote the pursuit of that truth. An advocate
is a servant of justice, which is a concept independent from court, State or
client. History is filled with miscarriages of justice by courts acting out of
mistake or malice. Examples abound of tyrannical States that, far from
being founts of justice, are its enemies incarnate. In a just society, an advo-
cate is the first and last defence against those who would corrupt the truth.
This principle should be engraved at the heart of an advocate’s professional
being.
General duties stemming from this first principle include honesty, dili-
gence, fidelity and independence.77 Flagrant misconduct includes bribery,78
intimidation,79 kidnapping,80 espionage,81 harassment,82 document forgery
77)
Hague Principles, Principles 2.2–2.4.
78)
See the Foresti case, note 126, infra.
79)
Wälde, supra note 33, 167–171. Professor Wälde cites (at 169, note 29) the cases of Sempra
v. Energy International v. Argentina (Case No. ARB/02/16), Award (28 September 2007), para.
31 and Enron Corporation and Ponderosa Assets, L.P. v. Argentina (Case No. ARB/01/3), Award
(22 May 2007), paras. 141–142 as examples of an ‘intimidatory message [that] will come
through a “nod and a wink,” a telephone call, an inquiry about the expert or witness’s involve-
ment that appears on the face to be innocuous but carries a clear message’. See also City Oriente
Ltd v. Ecuador (Case No. ARB/06/21), Decision on Provisional Measures (19 November 2007),
paras. 61–64 (involving State use of criminal prosecution to intimidate the Claimant). Examples
of alleged intimidation by ‘private actors invisibly controlled by government services’ include
Metalclad Corporation v. Mexico (Case No. ARB(AF)/97/1), Award (30 August 2000), para. 46;
Eureko B.V. v. Poland, Partial Award and Dissenting Opinion (19 August 2005), paras. 236–237.
See also Kensington v. Congo, 2007 US Dist. LEXIS 63115, where US lawyers for a law firm were
held to have attempted to intimidate witnesses in bad faith.
80)
See the abduction of an arbitrator by the State that appointed him in Himpurna California
Energy Ltd (Bermuda) v. Indonesia, Final Award (16 October 1999). A summary of the incident
appears in Werner, ‘When Arbitration Becomes War: Some Reflections on the Frailty of the
Arbitral Process in Cases involving Authoritarian States’, 17 Journal of International Arbitration
(2000), 97–103, 98–101.
81)
See discussions regarding alleged e-mail interception in Libananco Holdings Co. Ltd v. Turkey
(Case No. ARB/06/8), Decision on Preliminary Issues (23 June 2008), paras. 72–82; e-mail and
telephone surveillance in Europe Cement Investment & Trade S.A. v. Turkey (Case No.
ARB(AF)/07/2), Award (13 August 2009), paras. 21–24, 35–36; misuse of State or company
intelligence assets to illegally procure ‘evidence’ in Methanex Corporation v. USA (NAFTA), Final
Award (3 August 2005), paras. 54–60; Metalclad Corporation v. Mexico (Case No. ARB(AF)/97/1),
Award (30 August 2000), para. 46.
82)
See allegations in Helnan International Hotels A/S v. Egypt (Case No. ARB/05/19), Award
(3 July 2008), para. 75; Noble Ventures v. Romania (Case No. ARB/01/11), Award (12 October
Sarvarian /
and witness tampering83 or even assassination.84 Not only must counsel not
participate in such conduct, which in most cases would in any event be
criminal, but he must not shut his eyes to his own suspicions of such
behaviour nor consent to represent a party that he ‘knows’85 to be engaging
in it. Abusive litigation should not be dignified with the façade of profes-
sional representation.
2. Duties to the Client
(a) Acceptance
An advocate’s duties towards a client generally begin from the moment
that he has accepted his appointment as counsel.86 However, certain issues
arise concerning such acceptance. A fairly consensual principle is that an
advocate should only accept a case where he has the requisite skill, experi-
ence and resources to do so to an acceptable standard of competence.87
However, should an advocate be entitled to refuse to act for a client whom
he dislikes on political or other grounds? As mentioned earlier, this con-
cerns the arguments for or against the English ‘cab rank rule’. The author’s
own view, based upon that rule, is that an advocate must refuse to put cases
or arguments that are inarguable in either fact or law – such as insufficient
2008), para. 161; Tokios Tokelés v. Ukraine (Case No. ARB/02/18), Award and Separate Opinion
(27 July 2007), para. 51 and Procedural Order No. 3 (18 January 2005); Rumeli Telekom A.S.
and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Kazakhstan (Case No. ARB/05/16), Award
(29 July 2008), para. 217; Eureko B.V. v. Poland, Partial Award and Dissenting Opinion
(19 August 2005), paras. 236–237.
83)
E.g. – allegations in Tradex v. Albania (Case No. ARB/94/2), Award (29 April 1999), paras.
34, 82.
84)
See an anecdote about an ad hoc arbitration in 1980 in Werner, ‘When Arbitration Becomes
War: Some Reflections on the Frailty of the Arbitral Process in Cases involving Authoritarian
States’, 17 Journal of International Arbitration (2000), 97–103, 97–98.
85)
The definition of ‘knowledge’ – actual, reasonable or constructive – is an intricate issue upon
which the Hague Principles are silent. This article suggests a standard of ‘reasonable suspicion’
whereby an advocate may not ignore signs that indicate a threat to fair trial but must act with
some defensible basis for suspicion.
86)
This is commonly known in common law professions as ‘accepting instructions’ or ‘accepting
a brief ’. In the civil law professions, as receiving his ‘mandate’ or mandat.
87)
Hague Principles, Principle 3.3: ‘Counsel shall discharge his or her professional duties com-
petently and with integrity, diligence and efficiency and with a view to avoiding unnecessary
expense or delay. Professionalism denotes both the requisite skill and the ability to dedicate the
time and resources necessary to perform the required duties.’
Sarvarian /
evidence to sustain crucial assertions of fact or a recent law or precedent

emphatically adverse to his client’s arguments.88
Another matter is that of fees, which is both contentious and interna-
tionally unregulated. Should ‘contingency fee’ arrangements be allowed,
whereby an advocate is only paid from whatever sum he ‘wins’ for his client
and thereby acquires a direct financial interest in his client’s cause? Should
an advocate be allowed to refuse a case on the ground he considers the fee
offered to be inadequate or unreasonable? Should there not be some pro
bono publico duty to enable poorer parties to retain good counsel? Fair trial
demands equality of access to good counsel and professional objectivity
requires financial independence from a client’s cause.
(b) Withdrawal
Withdrawal from a case involves, like all other ethical issues, a conflict
between duties to justice and client. A client’s right to legal representation
should not be regarded lightly and should only be displaced as a last resort
because of the extreme difficulty of withdrawing without causing prejudice
to a client’s cause. As indicated above,89 if an advocate ‘knows’ that his cli-
ent is, for example, engaging in misconduct such as intimidation, kidnap-
ping, assassination, espionage or corruption, it is suggested that not only
should he be required to withdraw but also, as discussed under ‘confiden-
tiality’ below, to disclose his knowledge to the Tribunal and to the oppos-
ing party.
Moreover, it is a basic ethical precept that an advocate must not com-
promise his professional standards in order to please his client or a third
party.90 Paradoxically, this is a duty owed to the client which requires an
advocate to – if necessary – oppose his client’s wishes. An advocate must
tell a client what he needs to hear, which is often the very opposite of what
88)
E.g. – J.I. Case Company v. Islamic Republic of Iran and Others (Case No. 244), Award
(15 June 1983), 3 Iran-US C.T.R. (1984), 62–72, 66, 68–69 (Dissent of Howard M. Holtz-
mann): ‘The Iranian Government, which was in exclusive possession and control of evidence
which would either prove or disprove the claim, failed to produce that evidence . . . Neither the
Government of Iran, nor any other Respondent, presented any evidence whatsoever with respect
to those bare conjectures . . . The Government of Iran has access to all such financial and other
business documents; it produced none. As to EC, the Government of Iran could also have pro-
duced at least one competent former executive of that company as a witness, or explained why it
could not do so.’
89)
Notes 79–84, supra.
90)
Hague Principles, Principle 3.3.
Sarvarian /
he wishes to hear.91 If, in his professional judgement, a client is insisting

upon pursuing a cause or a specific argument or application within a cause
that is unfounded in fact or law or otherwise abusive92 an advocate must
refuse to collaborate in a perversion of justice. An example of this is abuse
of procedure in order to exhaust opponents’ financial resources and thereby
force them to settle on unfavourable terms.93
(c) Conflict of Interest

Conflicts of interest have recently become both topical and controversial in
ICSID arbitrations. This was inevitable, both because of the lack of any
admission requirement that excludes former or currently serving arbitra-
tors from acting as representatives as well as the omission of any prescribed
standards concerning a contentious issue of legal ethics. As alluded to in
the discussion concerning admission requirements above, the possibility
for ‘issue conflicts’ have attracted comment94 as well as unsuccessful chal-
lenges in investment arbitrations.95 The author’s view, as previously stated,
is that the problem of issue conflicts can be neatly and permanently solved
by requiring persons to choose either to act as arbitrators or as representatives.
Counsel should disclose any personal links with the opposing party or
with the Tribunal such as may give rise to an appearance of conflict and in
certain cases should probably be obliged to refuse or withdraw from a case.
Examples may include familial and romantic relationships.96 Although the
91)
Brownlie, supra note 70, 11–14, 14.
92)
See, e.g. – the discussion on abuse of process in Waste Management v. Mexico (Case No.
ARB(AF)/00/3), Decision on Preliminary Objections (26 June 2002), paras. 48–50; the discus-
sion of costs in International Thunderbird Gaming Corporation v. Mexico (NAFTA), Award
(26 January 2006), paras. 210–221, Sep. Op. Professor Wälde, paras. 124–147, Dissenting Op.
Mr Rovine; Methanex Corporation v. USA (NAFTA), Final Award of the Tribunal on Jurisdiction
and Merits (3 August 2005), Part V (‘Arbitration and Legal Costs’).
93)
94)
Levine, ‘Dealing with Arbitrator “Issue Conflicts” in International Arbitration’, Dispute Reso-
lution Journal (Feb–April 2006).
95)
Ibid., Argentina mounted challenges in the cases of Siemens v. Argentina (Case No. ARB/
02/8), Decision on Jurisdiction (3 August 2004) and Azurix v. Argentina (Case No. ARB/01/12),
Award (14 July 2006) against the same individual, both of which were unsuccessful. Subsequent
initiatives have been taken within the ICSID system to broaden the duty of disclosure for
arbitrators.
96)
For examples of sex scandals between counsel and arbitrators, see Hanotiau, ‘Misdeeds,
Wrongful Conduct and Illegality in Arbitral Proceedings’, 1(5) Oil, Gas and Energy Law (2003),
paras. 10–15.
Sarvarian /
issue of personal links has arisen in commercial arbitration, it has yet to do

so before ICSID tribunals.
However, ICSID cases have recently had to address the problem of pro-
fessional links between counsel and arbitrator. In the Hrvatska case,97 the
Respondent’s representation (the English firm of Allen & Overy) informed
the Tribunal and Claimant of the appointment of Mr David Mildon QC
of Essex Court Chambers98 as representative for the oral hearings.99 Cru-
cially, this appointment was made after the constitution of the Tribunal
and the completion of the written stage of proceedings. The Claimant,
upon learning that the President of the Tribunal (Mr David Williams QC)
was also a member of Essex Court Chambers,100 requested disclosure of the
nature of the professional links between the two men. The Respondent’s
representatives denied any duty of disclosure and resisted disclosure until
the oral hearing itself, whereupon it emerged that they had approached
Mr Mildon about instructing him some two months prior to their notifi-
cation of his participation just before the oral hearing itself.101
The Claimant applied for Mr Mildon’s exclusion on the ground that,
had it known of his participation before the constitution of the tribunal, it
would not have agreed to the President’s appointment.102 Being unfamiliar
with the English Bar, it was uncomfortable with the idea that two mem-
bers of the same chambers – though sharing no hierarchical relationship,
being self-employed – could both appear in the same arbitration as arbitra-
tor and representative.103 The Tribunal was confronted with the choice
that, prompt disclosure having been precluded as a remedy by the Respon-
dents’ representatives’ conduct, the only two ways to remove a risk of
appearance of bias were the resignation of the President or the exclusion of
97)
Hrvatska Elektroprivreda, d.d. v. Slovenia (ICSID Case No. ARB/05/24), Tribunal’s Ruling
regarding the participation of David Mildon QC in further stages of the proceedings (6 May
2008).
98)
For a brief explanation of the relevant aspects of the English ‘chambers’ system, see paras.
17–19, ibid.
99)
Ibid., para. 3.
100)
He is a ‘door tenant’, which is a member who does not maintain an office at the Chambers
themselves.
101)
The representatives did observe: ‘we accept the point now made that it would have been
sensible and prudent for us to have made that disclosure at that time’ – ibid., para. 11.
102)
Ibid., para. 7.
103)
Ibid., para. 10.
Sarvarian /
the representative. Invoking an ‘inherent power’, considered in detail

below,104 the Tribunal opted for the latter course.
This article respectfully agrees with that decision. The reason is that to
demand the President’s resignation – a course of action that neither party
desired105 – when his appointment long preceded that of the representative
in question would have been both unfair and disruptive. The issue of dis-
closure or withdrawal due to appearance of bias arising from professional
or personal links can be fairly solved with a temporal approach whereby
the onus should lie upon the person appointed later, whether arbitrator
or representative. A ‘first come, first served’ approach deals equally with
both bench and bar and protects the position of the most innocent person
concerned.
The issue reappeared recently in the pending Rompetrol arbitration,106
where objection was raised to the appointment of a representative
(Mr Barton Legum) for the Claimant who was a former employee of a
law firm of which an arbitrator had also been a member. The Claimant,
through letters signed by Mr Legum himself,107 denied any disclosure obli-
gation.108 The Tribunal, in denying the Respondent’s application to exclude
Mr Legum from the proceedings, interpreted the application as effectively
an indirect challenge to the impartiality of the Tribunal.109 In other words,
the Tribunal considered that the application must be based upon an appre-
hension of bias on the part of the Tribunal member concerned towards his
former colleague.
It is suggested that this premise was an incorrect one because there was
no basis for a challenge to the arbitrator in question. This is due to the fact
that Mr Legum was appointed as representative after the Tribunal had
already been constituted. Each arbitrator is required to disclose the exis-
tence of any ‘professional, business or other relationships . . . with the par-
ties’ upon appointment.110 The arbitrator in question had already done so
104)
Section 6, infra.
105)
Hrvatska, supra note 97, para. 16.
106)
Rompetrol Group N.V. v. Romania (ICSID Case No. ARB/06/3), ‘Decision of the Tribunal
on the Participation of a Counsel’ (14 January 2010).
107)
Itself a conflict of interest, as he should have suspended his own participation pending reso-
lution of a procedural matter concerning him personally rather than his client.
108)
Rompetrol, supra note 106, para. 6.
109)
Ibid., para. 18.
110)
Arbitration Rules, Rule 6(2).
Sarvarian /
and, of course, there was at that time nothing to disclose. It was not the
initial appointment of the arbitrator that created the conflict issue but
rather the subsequent appointment of the representative who resisted dis-
closure and thereby stoked suspicions of close professional links such as
would give rise to a reasonable apprehension of bias.111 The question of
disclosure, withdrawal or exclusion consequently lay with him, not with
the arbitrator. Whilst it is certainly arguable that prompt and full disclo-
sure on the part of the representative would have sufficed as the past
professional links appear to have been tolerably remote, to interpret the
entire issue as a surreptitious challenge to the integrity of the Tribunal is
incorrect.
The following statement from Rompetrol is interesting:
If that be the regime applying to an arbitrator, the ICSID Convention

contains nothing of a remotely similar kind in respect of the persons
representing a Party in a dispute duly brought before the Centre, and
remitted to a Tribunal under the Convention. Nor do either the Insti-
tution Rules or the Arbitration Rules. This silence cannot be acciden-
tal, and surely derives from the fundamentally different duties inherent
in the roles of arbitrator and of counsel. The duty of the arbitrator is
to judge independently and impartially, free from any influence other
than the strength of the cases presented to him. Counsel, on the other
hand, is not required to be ‘impartial’ at all, nor ‘independent’ in the
sense demanded of an arbitrator, since counsel will by definition be
retained, and paid, by one of the Parties. Counsel’s duty is to present
his Party’s case, with the degree of dependence and partiality that the
role implies, so long as he does so with diligence and with honesty, and
in due compliance with the applicable rules of professional conduct
and ethics.112
This author respectfully disagrees with this definition of counsel’s role as

dependent and partial, for the reasons described above. However, the refer-
ence to ‘the applicable rules of professional conduct and ethics’ is particu-
larly difficult to understand since, with the exception of national rules for
111)
For the test that the Tribunal adopted, see Rompetrol, supra note 106, para. 15 (note 4).
112)
Supra note 111, para. 19 (emphasis in original text).
Sarvarian /
professional representatives whose national bars exercise extraterritorial

jurisdiction for conduct before international courts and tribunals, there
exist no such rules. Even more importantly, there exist no common rules
that bind all representatives to uniform standards of professional conduct.
Conflicts of interest also entail contemporaneous representation of mul-
tiple clients whose legal interests clearly diverge, with differing national
rules concerning whether such conflicts may be waived by the written con-
sent of the client.113 This author inclines against such waiver on the ground
that the conflict of interest concerns not just the client but also the court
or tribunal, which has a duty to see justice done. The danger is that the
interests of one client may be conflated by the advocate with the interests
of the other client for private ends. Although this will most obviously man-
ifest itself where both clients are party to the same proceedings, it may also
occur where they are not, e.g. – where their shared counsel conducts nego-
tiations with a shared opponent in which he makes ‘trade-offs’ with their
diverging cases. This problem was considered in one WTO case114 and the
author is aware from a confidential source of another, pending case before
an international tribunal in which it has surreptitiously arisen.
Finally, an interesting manifestation of a conflict of interest recently
occurred in the RSM Production case.115 The subject-matter of that claim
concerned an allegation that the Attorney General of Grenada had been
bribed by one ‘Global Petroleum Group’ (‘Global’) to award it an oil explo-
ration contract whilst denying one to the Claimant.116 Before the Tribunal,
the Claimant upon invitation from the Tribunal specifically refrained from
requesting a finding that the person in question was corrupt.117 However,
some two years following the Merits Hearing, RSM Production applied to
an ICSID ad hoc committee to make an order for disclosure by Grenada of
‘the details of its relationship with Global Petroleum, beginning with dis-
closure of who is paying Freshfields’ fees in the current annulment pro-
ceedings’. The basis for that seemingly bizarre request was an allegation
that Global, the very same company that had allegedly bribed the Attorney
113)
Terry, supra note 73, 31–32.
114)
Panel Report on the EC-Tariff Preferences (WT/DS246/R), 1 December 2003, paras. 7.14–7.17.
115)
RSM Production Corporation v. Grenada (Case No. ARB/05/14), Decision on RSM Produc-
tion Corporation’s Application for a Preliminary Ruling (29 October 2009).
116)
Ibid., para. 4.
117)
Sarvarian /
General, was in fact financing Grenada’s litigation costs.118 Although the

truth of that assertion was not determined, since the Committee denied
the application, if true it constituted a particularly objectionable conflict of
interest wherein a poor State was in effect being controlled by a powerful
company whose legal interest in the proceedings clearly diverged.
(d) Diligence
The duty of due diligence applies during the course of an advocate’s repre-
sentation. Not only should an advocate be required to acquire a sufficient
level of professional competence in order to be admitted to appear before
ICSID tribunals and only to accept briefs for which he has the requisite
expertise and resources but, assuming that he meets both of those require-
ments, he should have a continuing duty of diligence in the performance
of his duties. Thus, ‘diligence’ should not be confused with ‘competence’ as
the concept assumes that an advocate has the necessary ability to perform
the task before him. Rather, diligence entails a failure to exert the necessary
effort in order to represent his client to the requisite standard of compe-
tence. In the two cases of Generation Ukraine119 and CDC Group120 explored
above, there appears to have been a difference. In the former case, it is
ambiguous whether the counsel concerned were incompetent in the sense
that they lacked the ability to perform their duties, they were dishonest in
that they attempted to mislead the Tribunal and/or they were negligent in
failing to exercise due diligence. By contrast, in CDC Group there it appears
likelier that the representatives simply lacked the capability and expertise
to represent competently their State as opposed to any question of profes-
sional negligence.
(e) Loyalty
At first sight, an ethical duty of loyalty to one’s client121 appears too obvi-
ous to warrant substantive discussion. However, the fact remains that there
has been mounting concern in certain quarters of the international legal
118)
Ibid., para. 13.
119)
Note 36, supra.
120)
Note 39, supra.
121)
Hague Principles, Principle 3.1: ‘Counsel shall loyally discharge his or her professional duties
in the best interests of the client, placing those interests before his or her own or those of any
third party to the proceedings.’
Sarvarian /
community at the unscrupulousness of certain powerful law firms that

appear to pressure successfully their clients – small and inexperienced
States – into unnecessary litigation in their own financial interests.122
Another scenario is that the law firm acts also for a wealthy company that
has great influence as an investor in the State so that the firm represents the
State in a manner that serves the interests of its wealthy – hence, more
important – client.123 Clearly, such behaviour would violate a duty of loy-
alty owed to one’s client and, at a properly regulated bar, would conse-
quently attract disciplinary sanctions.
(f ) Confidentiality
The principle of professional secrecy or confidentiality is sensitive. Confi-
dentiality, for obvious reasons, is greatly valued by clients.124 Its rationale is
that a relationship of trust with one’s client is impossible without the
knowledge that disclosures will be kept secret.125 This applies a fortiori to
confessions in criminal proceedings. However, exceptions to the principle
may be commonly found in codes of conduct for evidence of future crimes
to be committed or for fraud. This article argues that such exceptions are
insufficient because practice has shown that unscrupulous clients have
been willing to resort to a wide range of utterly unacceptable tactics to
achieve their ends. Based upon the thesis that an advocate’s primary duty
is owed to procedural justice or fair trial, it is suggested that where an advo-
cate reasonably suspects that a sufficiently serious breach of fair trial has
occurred or is about to occur he should have a duty to promptly disclose
122)
Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
(Merits), [2005] ICJ Rep. 168, Declaration of Judge Oda, para. 8: ‘I personally wonder, in the
light of the increasing number of unilateral applications, whether the offhand or casual unilateral
referral of cases by some States (which would simply appear to be instigated by ambitious private
lawyers in certain developed countries), without the Government of the State concerned first
exhausting diplomatic channels, is really consistent with the purpose of the International Court
of Justice . . . I see what may be termed as abuse of the right to institute proceedings before the
Court’. See also Cot, ‘Appearing “for” or “on behalf of ” a State: The Role of Private Counsel
Before International Tribunals’ in Ando et al., Liber Amicorum Judge Shigeru Oda (2002), 835–
847, 835.
123)
Something like this may have lurked in the background of the problem in the Grand Prince
case before the ITLOS.
124)
Brownlie, supra note 70, 13.
125)
See, e.g. – CCBE Code of Conduct, para. 2.3.
Sarvarian /
its existence to the Tribunal and to the opposing party regardless of client
consent.
In the recent case of Foresti,126 the claimants, to whom counsel for the
respondent had disclosed confidential information belonging to his client
and offered to assist in convincing his client to accept a settlement favour-
able to them in exchange for a bribe, did not inform their lawyers until a
late stage about these proposals despite four meetings with the corrupt
advocate. Once counsel were informed, to whom was their professional
duty owed and to what action did that duty commit them? How were they
to advise their clients to proceed and how were they to treat the confiden-
tial information which the latter had obtained from their ‘mole’ in their
opponents’ legal team? Specifically, is there a duty to disclose the existence
of such a serious breach of fair trial to the Tribunal127 or to the other side?
126)
Piero Foresti and Others v. South Africa (ICSID Case No. ARB(AF)/07/01), Award (4 August
2010) where counsel for South Africa (Mr Seth Nthai SC) was disbarred in medias res for breach-
ing confidentiality by disclosing the internal deliberations of his legal team and offering to per-
suade his team to accept a settlement advantageous to the Claimants in exchange for a bribe.
For a summary narrative of the incident, see the Award, paras. 30–40. For documents relating to
the disbarment proceedings, see http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/
page71654?oid=171725&sn=Detail (last viewed 8 September 2010). Counsel for the Claimants
was not informed by his clients of ongoing negotiations with Mr Nthai until a relatively late
stage, whereupon they advised disclosure to the other side and to the arbitral tribunal – see ‘Wit-
ness Statement of Mario Vittorio Marcenaro’, paras. 7.9, 7.30, 7.34–7.36. In another incident,
Thailand alleged in WTO proceedings that an amicus curiae brief submitted by the Consuming
Industries Trade Action Coalition (‘CITAC’) was made with knowledge of information concern-
ing Thailand’s case obtained through breach of confidentiality by Poland. Although the Appellate
Body made no finding of such breach, Poland’s own investigation revealed that its law firm
(which had had access to Thailand’s confidential material) had a member who had ‘worked as a
corporate lawyer’ for CITAC upon which its representatives withdrew from the case – Thailand
(Anti-Dumping Duties), WT/DS122/AB/R (12 March 2001), paras. 62–78.
127)
The English barristers who represented the Claimants were seemingly bound to the English
Code of Conduct to keep the information secret until their clients consented to its disclosure –
see Code of Conduct of the Bar of England and Wales, para. 702. The Tribunal’s analysis in its
Award (para. 119) concerning the Claimants (but not their representatives) is telling: ‘While
understanding the Claimants’ concern that they could not assume that an agreed compromise
with the Respondent would be implemented and that the arbitration should not be definitively
abandoned until the compromise was delivered by the Respondent in a legally-binding form, the
Tribunal also considers that it is not established that the Claimants needed to wait as long as they
did to inform the Respondent of the solicitation of a bribe by one of the Respondent’s senior
counsel, Seth Nthai, who continued to participate in the preparation of Respondent’s pleadings
while he was suggesting to the Claimants that he might secure the Respondent’s agreement to
settle the case without payment by the Claimants of the Respondent’s costs. Similarly, the Claim-
ants might have been able to inform the Respondent sooner that they were prepared to terminate
Sarvarian /
Could counsel ethically utilise the confidential information about internal

deliberations in order to frame their own legal strategy or were they obliged
to redress an unfair advantage that would result? The powers of the Court
to order disclosure of confidential information, never yet invoked, are
alone insufficient to protect procedural integrity from such hazards. Only
the advocates would be in a position to know of the danger and only pro-
fessional ethics would compel them to act upon it rather than tacitly accept
the forbidden fruit.128 As Professor Wälde put it:
If one party is aware of all internal plans within the other party (iden-
tification of witnesses, experts, strengths and weaknesses, legal and
factual strategy, remuneration arrangements, financial situation), it
has an immense strategic advantage. It can persuade (or intimidate)
experts and witnesses identified, it can manipulate the arbitration so
that the other side reaches the bottom of its war chest and can exploit
weaknesses discussed confidentially in the client-counsel relationship.129
In tracing the negotiating history of Foresti, it seems noteworthy in this

respect that the corrupt advocate Seth Nthai disclosed sensitive internal
information concerning his client’s negotiating posture and internal divi-
sions concerning a settlement.130 Although there is no indication in the
public documents that any further confidential information was disclosed
by Nthai in at least three further face-to-face meetings as well as distance
the arbitration on a ‘with prejudice’ basis. The Tribunal thinks that the Respondent’s costs (and,
indeed, the Claimants’ costs) would have been smaller if the Claimants had indicated earlier their
willingness to settle on a ‘with prejudice’ basis, and if Mr Nthai’s corrupt solicitations had been
promptly disclosed. Accordingly, the Tribunal thinks it right that the Claimants should bear
responsibility for a portion of the Respondent’s costs.’
128)
Counsel for the Claimants were English barristers – Award, para. 6; ‘The State Attorney’s
Complaint against Seth Nthai’, http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/
page71654?oid=171738&sn=Detail, para. 2.6. Paragraph 608 of the Bar Code of Conduct
states: ‘A barrister must cease to act and if he is a self-employed barrister must return any instruc-
tions: (f ) if having come into possession of a document belonging to another party by some
means other than the normal and proper channels and having read it before he realises that it
ought to have been returned unread to the person entitled to possession of it he would thereby
be embarrassed in the discharge of his duties by his knowledge of the contents of the document
provided that he may retire or withdraw only if he can do so without jeopardising the client’s
interests.’
129)
Wälde, supra note 33, 172.
130)
‘Witness Statement of Mario Vittorio Marcenaro’, para. 7.9.
Sarvarian /
communication,131 it seems plausible that such disclosures may have been

offered by Nthai to ‘prove his worth’ to obtain agreement to his corrupt
bargain.
3. Duties to the Tribunal

General principles of ethics that one may identify in an advocate’s interac-
tion with an international court or tribunal include candour, courtesy and
fealty.132 Counsel should not disobey, disrespect or lie to the bench. Like so
many other principles, these appear fairly obvious and straightforward.
However, practice has shown them to be somewhat alien to certain counsel
and in some ways rather more complex than they may at first seem.
(a) Obedience
A duty of obedience is intentionally framed rather starkly, for it is an
uncomfortable term for many counsel.133 However, ‘obedience’ means just
that: counsel should be subject to a general duty to implement diligently
the rules and orders of the tribunal. An example of where such a problem
may arise was in argument between two eminent counsel at a hearing of
the Corfu Channel case, following which the President of the ICJ admon-
ished both counsel for their lack of discipline in both referring to the con-
tent of contested submission of documents – an exercise that had been
prohibited by an order of the Court.134 As it is argued below, fair trial stan-
dards are legally binding upon arbitral tribunals. Consequently, observance
by counsel of fair procedure is – or ought to be – of prime concern to arbi-
tral tribunals.
However, it is suggested that there may be occasions in which arbitrators
themselves seriously breach fair trial standards. Arbitrators, however emi-
nent and experienced, are only human. More to the point, there are ‘arbi-
trators and arbitrators’ of differing standards of quality and integrity. There
exists no doctrine of infallibility whereby they are assumed to pronounce
ex cathedra without possibility of error. Some may make honest but serious
131)
Ibid., paras. 7.25–7.30.
132)
Hague Principles, Principles 5.1, 5.3, 6.1.
133)
See, e.g. – Hague Principles, Principle 5.1; ‘Counsel shall abide by the rules of conduct,
orders and directions of the international court or tribunal’ (emphasis added).
134)
Corfu Channel Case (United Kingdom v. Albania) (Merits), I.C.J. Rep. [1949], 4, Vol. III,
188. Vol. IV, 305–316.
Sarvarian /
mistakes, be corrupted or behave arbitrarily. In such an event, where fair

trial is being seriously undermined by the behaviour of an arbitrator it is
suggested that an advocate’s first duty to justice should require him to defy
the tribunal or withdraw from proceedings rather than dignify a gravely
flawed arbitral process with his loyalty. Moreover, cases of arbitral miscon-
duct135 should be reported by counsel immediately not only in the interests
of his client but also in those of future parties. Thus, a duty of fealty to the
tribunal is only general and presumed being in all cases subordinate to an
overriding duty to justice.
(b) Courtesy
This principle is largely self-explanatory. Counsel should always address a
court or tribunal, including its officials, with the dignity and decorum its
proceedings warrant. Insulting or abusive language or behaviour should be
strictly forbidden. Physical violence, needless to say, is not only potentially
criminal but unethical.136 Courtesy, however, transcends good manners. It
entails consideration for the bench and sensitivity to its concerns. Thus,
frivolous or otherwise abusive recourse to procedural applications – for
example, pursuant to a strategy of ‘financial attrition’137 towards the oppos-
ing party – should be considered to be disrespectful to the Tribunal as a
waste of its time.138 The same could also be said of repetitious recourse to
excessive or unfocused submissions.139
Above all, it requires respect for its procedures and its mission. Disre-
spect may be offered through polite language. For example, it has been
confidentially reported to the author that in the Metalpar case140 the legal
team for Argentina left the room in the first session of the arbitration in
order to express its strongly held view that the case was frivolous. However,
this was surely a matter for the tribunal to decide rather than for a party to
135)
See, e.g. – the ILA ‘Burgh House Principles on the Independence of the International Judi-
ciary’ and International Bar Association (‘IBA’) ‘Rules of Ethics for International Arbitrators’.
136)
See the physical attack by a Sierra Leone barrister upon a Court staff member – SCSL Code
of Conduct Hearing (10 November 2005), http://www.sc-sl.org/LinkClick.aspx?fileticket
=93t2u1uL8x8%3D&tabid=199.
137)
Wälde, supra note 33, 173–174; Lalive, ‘Some Threats to International Investment Arbitra-
tion’, 1(1) ICSID Review-FILJ (1986), 30–33.
138)
See, e.g. – SCSL, ‘Decision on Norman Counsel’s Request for Leave to Appeal under Rule
46(H)’ (25 July 2005).
139)
E.g. – Generation Ukraine, note 36, supra.
140)
Metalpar S.A. and Buen Aire S.A. v. Argentine Republic (ICSID Case No. ARB/03/5).
Sarvarian /
unilaterally assert. Similarly, in a case before the SCSL a court-assigned

counsel for a defendant (an English barrister, Mr Karim Khan), without
offering rude language to the Court nevertheless defied its authority to rule
against his application to withdraw as counsel and ultimately left the court-
room without permission.141
(c) Candour
This principle is, paradoxically, deceiving in its seeming simplicity. Coun-
sel should be required to always address the Court with honesty. However,
the precise standard of frankness that ought to be demanded is more con-
troversial. It has been anecdotally stated that one of the most troubling
features of ICSID advocacy for counsel is that there are divergent stan-
dards of honesty observed. Experienced counsel, in particular, are able
to skilfully skirt the line between zealous advocacy and dishonesty so that
it is difficult for opposing counsel to allege dishonesty with compelling
evidence.142
This applies particularly to lies of omission and potential conflicts with
the duty of client confidentiality.143 For example, in the Foresti case above,
the English counsel were bound by their domestic ethical rules to keep the
fact that an extremely grave breach of fair trial had occurred until their
clients gave their permission to disclose its existence. This they were seem-
ingly unwilling to do for quite some time, with the potential result that the
Tribunal and opposing party would have remained ignorant of the infringe-
ment altogether. It is suggested that this case illustrates the need for coun-
sel’s hands to be untied in such matters. They must be free, where
circumstances clearly dictate, to disclose the existence of such a serious
threat to the integrity of the process regardless of client consent.
141)
The Prosecutor of the Special Court v. Charles Ghankay Taylor (Case No. SCSL-2003–01–T),
Official Transcript (Monday, 4 June 2007), 258–267. Mr Khan sought to invoke not only
Milošević but also the ‘doctrine of all expedient means’ articulated by Lord Brougham LC in
1820 – ibid., 266.
142)
One may assert, for example, that the allegations of corruption made against the Claimant
in Lucchetti v. Peru (ICSID Case No. ARB/03/4) concerning the averred bribery of a local judge
were defamatory when there was no judicial finding to that effect, there are divergent legal defini-
tions of bribery and the question was immaterial to the case – see the Award (7 February 2005),
paras. 51, 60.
143)
E.g. – if the ad hoc committee in RSM Production had made an order for disclosure of what
would have been confidential information – note 115, supra.
Sarvarian /
The objection to this is that, since counsel were ignorant of the entire
affair until their clients informed them, they would have likely been unable
to persuade their clients to reveal the attempted bribery because the latter
would have been unwilling to reveal such sensitive information knowing
that their counsel would be free to disclose it. This argument clearly carries
some force, in that the relationship of trust is what led the clients to convey
the problem to counsel and led counsel ultimately to persuade the clients
to ‘do the right thing’. To untie counsel’s hands would be to threaten that
trust. Nevertheless, on balance the need for some person to disclose such
matters outweighs that risk. The possibility that tribunal awards can be
jeopardised by such serious misconduct by parties or by their representa-
tives and that counsel should be required by their professional duties to
silently watch cannot be the best solution to the problem. At least, if one
may rely upon counsel to blow the whistle on such matters then the likeli-
hood of a tribunal becoming aware of them in time improves.
(d) Ex Parte Communication

Contact between representatives and arbitrators during the course of
ongoing proceedings should be done with great care.144 The seriousness
of this matter and the corresponding need for great caution in contacts
with the bench during an ongoing arbitral process cannot be understated.
Communication without the knowledge or participation of the opposing
party, or ‘ex parte communication’, should be especially avoided. The rea-
son is that any external party (the opposing one, most obviously) cannot
but suspect in many if not most circumstances that impartiality has
been compromised. Informal, private communication between arbitrator
and representative, however innocent, should thus be proscribed as a gen-
eral rule. Not only is there the danger of the appearance of neutrality
becoming compromised, but inadvertent slips can occur that exacerbate
the problem.145
144)
Hague Principles, Principle 5.6: ‘Counsel shall exercise appropriate caution in his or her
personal contacts with the judges, officers and staff of an international court or tribunal, in par-
ticular in a pending case. Any such contacts should be conducted in a manner that is compatible
with the exercise of an independent judicial function and that may not affect or reasonably
appear to affect independence or impartiality.’
145)
Such as occurred on more than one occasion before the Nuremberg International Military
Tribunal – Tusa and Tusa, The Nuremberg Trial (1983), 232; Smith, Reaching Judgment at Nurem-
berg (1977), 109–110.
Sarvarian /
Naturally, any procedural impropriety on the part of an arbitrator should

not be entertained by counsel. This can involve, for example, breaches of
arbitral secrecy through surreptitious disclosures of internal deliberations.146
Extreme manifestations of compromised neutrality have involved sexual
relations between an arbitrator and a counsel.147 Should overtures be made
by a corrupt arbitrator such as violate fair trial, it is argued that counsel
should not only be required to refrain from participation but also to
promptly inform the Tribunal and opposing party of the matter. A com-
plaint to the national disciplinary body, if any, would also be appropriate
to protect future parties.
(e) Documentary Evidence

In the adducing of evidence, there are not only the dangers of forgery and
witness tampering – wilful attempts to manipulate and distort the veracity
of evidence – but also accidental contamination of evidence through
improper handling. This of course largely derives from procedural law,
which regulates the manner in which evidence may be adduced. Yet, as will
be seen, there is a corresponding ethical dimension because courts and
tribunals – and a fortiori ICSID investment arbitral tribunals – lack the
capacity to omnisciently police the parties. Counsel should consequently
be required, in their capacity as autonomous intermediaries between arbi-
trator and client, to act as facilitators of justice by shielding the tribunal
from contaminated evidence and by ensuring through their own conduct
that the evidence of their clients and opposing party may be fairly adduced
and fairly tested.
The principal dangers arising from manipulation of documentary evi-
dence are concealment and forgery.148 For example, governments may
146)
E.g. – the Buraimi arbitration in 1954 between the UK and Saudi Arabia that was ultimately
frustrated in Crawford, ‘Advocacy Before International Tribunals in State-to-State Cases’ in
Bishop and Kehoe, supra note 4, 303-330, 314-315. A threat to judicial secrecy also arose before
the ICJ in the case of Nuclear Tests (Australia v. France) (Judgment), I.C.J. Rep. [1974], 253;
Nuclear Tests (New Zealand v. France) (Judgment), I.C.J. Rep. [1974], 457 – see 28 I.C.J. Yearbook
(1973–1974), 128. Professor Wälde likewise alludes to incidents involving leaking of tribunal
papers in the CME v. Czech Republic ad hoc arbitration as well as by a former President of the
Iran-US Claims Tribunal – supra note 33, 165 (note 15), 166 (note 18).
147)
Note 96, supra.
148)
This is a danger that is not limited by time or forum – see, e.g. – the false translations inci-
dent in the Behring Fur Seal arbitration with the possible connivance of an opposing party in
Marston, ‘Falsification of Documentary Evidence before International Tribunals: An Aspect of
Sarvarian /
attempt to abusively invoke ‘executive privilege’ in order to conceal docu-

ments adverse to their cases.149 An example of documents whose authentic-
ity was challenged before the ICJ arose in the case of Qatar v. Bahrain150
where Qatar adduced eighty-one ‘historical documents’ to its written
pleadings in support of its case that it had title to the disputed Hawar
Islands.151 Expert analysis commissioned by Bahrain indicated that docu-
ments adduced by Qatar and stated to be from its own archives were
forged.152 Qatar declined to elaborate upon the provenance of the docu-
ments – saying only that they had been obtained through ‘academic and
private channels’ and that they had submitted them to the Court in good
faith.153 Qatar’s subsequent analysis also resulted in certain questions as to
the documents’ authenticity, following which it withdrew them ‘so as to
enable the Court to address the merits of the case without further proce-
dural complications . . . with the proviso that it does not accept Bahrain’s
distortions of the historical facts or its exaggerations of the effect of the
challenged documents upon Qatar’s case’.154 Although in its judgment
the Court only commented upon the incident in the section setting out
the history of the proceedings, Judge Fortier (seemingly adopting the
words of Sir Elihu Lauterpacht, counsel for Bahrain, in his oral arguments)155
in a separate opinion characterised Qatar’s case as “polluted” and “infected”
by the documents.156
Counsel for Qatar, numerous and from diverse national jurisdictions,
have been described as “seasoned, experienced, respectable . . . and very
the Behring Sea Arbitration, 1892–3’, 71 BYIL (2000), 357–373, 373. See also the allegations in
Tradex, note 83, supra.
149)
150)
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bah-
rain) (Merits), I.C.J. Rep. [2001], 40.
151)
Ibid., Memorial of the Government of the State of Qatar (30 September 1996), ‘Chapter V:
The Territorial Integrity of Qatar and Qatar’s Sovereignty over the Hawar Islands’; Counter-
Memorial of the Government of the State of Qatar (31 December 1997), 1–3 (paras. 1.2–1.8).
See also the oral arguments of Sir Elihu Lauterpacht, counsel for Bahrain, Verbatim Record
(8 June 2000), 11–15.
152)
An account of the matter from the standpoint of Bahrain is given by Bahrain’s Agent in the
case. See al-Arayed, A Line in the Sea: The Qatar v. Bahrain Border Dispute in the World Court
(2003), 355–393.
153)
Ibid., 388.
154)
Ibid., 389.
155)
Supra note 151, 12 (para. 8), 14 (para. 14).
156)
Ibid., 452 (para. 4).
Sarvarian /
embarrassed”.157 From the ethical perspective, the incident is troubling in

two respects. The first is that documents of doubtful authenticity on which
counsel relied and were expected to plead were adduced to the Court. The
government of Qatar’s vague explanation that it had acquired the docu-
ments from ‘a number of sources . . . through official, academic and private
channels . . . from various sources all over the world, with a view to their
inclusion in Qatar’s archives’158 appears bare and circumstantially weak.159
Nevertheless, the explanation concerning how these documents were sub-
mitted to the Court without Qatar’s external counsel detecting that there
was a problem with them does not seem to be collusion on the part of
counsel but rather a failure to sufficiently scrutinise the documents upon
which their pleadings were based.160 Whether this ought to be considered
unethical is contestable; certainly, if some breach of professional miscon-
duct were to be detected, mitigation is appropriate if only because of the
strong control that States often (or even usually) exert in the presentation
of their cases before the Court.161
The second aspect of the incident is that, despite the fact that Qatar’s
Hawar Islands claim was based upon the challenged documents that were
eventually withdrawn, counsel chose to advance an alternative legal argu-
ment concerning the Hawar Islands rather than to concede the issue.162
Whilst this was presumably at the behest of Qatar through its agent, the
question remains whether counsel ought to have consented to put those
arguments in the circumstances.
157)
Cot, supra note 4, 835–847, 837.
158)
Ibid., ‘Interim Report Submitted by the State of Qatar’ (30 September 1998), para. 14.
159)
‘And still another feature common to these documents was that they all seem to have origi-
nated from Qatar’s Diwan Amiri Archives – none was available from other public sources; none
had previously been known to experts or historians; and none could be found in Bahrain’s repos-
itories’ (emphasis added) – al-Arayed, supra note 152, 356.
160)
Mendelson, ‘The Curious Case of Qatar v. Bahrain in the International Court of Justice’, 72
BYIL (2001) 183–212, 211 (para. 4). See, however, the author’s disclaimers at 183 (note **) and
211 (note 70).
161)
As noted above, pleadings are signed not by counsel but by agents and everything that coun-
sel says must have prior approval from the agent – Bowett, ‘The Conduct of International Litiga-
tion’ in Bowett et al., The International Court of Justice: Process, Practice and Procedure (1997),
1–20, 12, 14, 17–18.
162)
Qatar v. Bahrain, Verbatim Record (8 June 2000), 13–14 (paras. 11–13); Separate Opinion
Judge Fortier, 452 (para. 10).
Sarvarian /
A recent example of fraudulent evidence being adduced and of arguably

unethical handling by counsel occurred in the Gabay arbitration163 before
the Iran-US Claims Tribunal. There, the Tribunal described counsel’s con-
duct in the following terms:
On the basis of the testimony of the Respondent’s expert witness and

of the Claimant’s statements at the Hearing as well as other evidence,
the Tribunal is convinced that the copy of the letter of 1 June 1983
submitted by the Claimant has been altered. Therefore, the Tribunal
does not consider this document in determining the date on which the
claim arose . . . On 13 July 1989, the Respondent offered to submit . . .
the original carbon copy from which the Claimant’s photographic
copy of that letter was made, and it did so on 16 October 1989, more
than eighteen months before the Hearing. Even before the Respon-
dent’s document had been submitted, the Claimant asserted that “the
production of the original false document will prove nothing”, and the
Claimant and his expert failed to examine the original until two days
before the Hearing. The Claimant changed his position only at the
Hearing, when his attorney conceded that the Claimant’s document
appeared to have been altered while the Respondent’s copy appeared
not to have been altered. The Tribunal disapproves of such behaviour
on the part of the Claimant and of his attorney. Although it does not
have the power to impose sanctions or disciplinary measures for pre-
sentation of false evidence, the Tribunal cannot pass over such abusive
conduct in silence. The Claimant should have investigated the authen-
ticity of his document before its presentation to the Tribunal and, at
any rate, should have compared it to the original copy presented by
the Respondent, and withdrawn his document and accusations of
forgery against the Government of Iran soon after the latter’s com-
ments and evidence were filed.164
Whilst this excerpt is also considered below in the context of the doctrine
of inherent powers, the incident graphically illustrates the necessity for the
professional regulation of counsel before international courts and tribunals
163)
Norman Gabay v. Islamic Republic of Iran (Case No. 771), Award (10 July 1991), 27 Iran-US
C.T.R. (1992), 40–48.
164)
Ibid., 45–46 (para. 13).
Sarvarian /
in order to oblige advocates to, inter alia, protect the Tribunal from falsi-
fied evidence and unsubstantiated accusations.
(f ) Testimonial Evidence
Testimonial evidence, involving human memory and candour, is particu-
larly susceptible to tampering and contamination. With sufficient exper-
tise, even forgeries can be discovered.165 The memory of witnesses of fact
and opinions of expert witnesses, however, are more easily corrupted. Con-
cordantly, greater procedural safeguards are necessary to prevent not only
tampering – a deliberate act – but also contamination, which is inadver-
tent. Since representatives play an important role in the adducing of
evidence before ICSID tribunals, ethical rules have the potential to be
impactful in order to homogenise divergent standards of behaviour in a
critical area.
Tampering entails an intention to alter the substance of the evidence.
Although this does not necessarily require a dishonest motive, fraudulence
will be the dominant motive in the majority of cases. This essentially
involves an overt act to encourage a witness to lie – whether overtly or by
omission – such as persuasion, bribery or intimidation.166 It is unlikely that
a proscription upon such activities167 in a putative ICSID code of conduct
would prove controversial. As argued above,168 the removal from parties of
165)
For example, it should be noted that the false translations in Behring Fur Seals was discovered
by US counsel who, knowing no Russian, ‘decided, on a personal whim, to indicate on the fac-
similes of the original documents written in Russian the signifying passages which he read in the
translations, using proper names as identifying indicators . . . The writer attributed his failure to
succeed in locating the first passage to his ineptitude and ignorance of the foreign language, but
upon failing to identify the next two his suspicions were aroused and before the evening was
over he became satisfied that a fraud of the first order had been practised on the government’ –
Marston, supra note 148, 360. The challenged documents in Qatar included certain clues that
could also have suggested something was amiss. Discrepancies included language (Arabic rather
than Ottoman Turkish), chronology (a letter purportedly written by a Bahraini employee who
would have been ten years old at the time) and history (e.g. – a document referring to ‘Her
Majesty’s Government’ when the British monarch at the time was King George VI) – al-Arayed,
supra note 152, 358.
166)
Notes 79 and 83, supra. See, in particular, Libananco (para. 72), Europe Cement (paras. 21,
35) and Tradex (para. 82). For examples from proceedings before the ECtHR, see Goldhaber, A
People’s History of the European Court of Human Rights (2009), 125–127, 138, 142–144.
167)
Hague Principles, Principle 6.1: ‘Counsel shall present evidence in a fair and reasonable
manner and shall refrain from presenting or otherwise relying upon evidence that he or she
knows or has reason to believe to be false or misleading.’
168)
Section II. B, supra.
Sarvarian /
the right to appoint their witnesses (particularly experts) as representatives

and thereby exert greater control over their statements as well as insulate
them from cross-examination should be removed.
A more intricate issue is evidence contamination, which entails the
inadvertent corruption of evidence through inappropriate methods of pre-
paring and interrogating witnesses. Appropriate procedure for the prepara-
tion of testimony (i.e. – witness statements, depositions and affidavits) and
for interrogation (witness coaching, extra-testimonial contacts and sugges-
tive questioning) diverge greatly between common law and civil law sys-
tems on the one hand and within common law systems on the other.
Whilst an outline of the procedural or legal differences is necessary in order
to illustrate the points of contention, the ethical issues are uniform in that
the underlying purposes to procedural safeguards are to prohibit counsel
from manipulating – intentionally or accidentally – the substance of the
evidence. Although the parties have a large degree of autonomy in selecting
their procedures, this article suggests that strict ethical principles proscrib-
ing certain practices are vital in order to preclude avoidable complications
for a tribunal’s award. Such practices engage the human right to a fair trial
and consequently, as argued below,169 empower tribunals to disregard par-
ties’ express wishes in procedure if they threaten the integrity of the eviden-
tiary process.
Under the civil law procedure of those systems broadly following the
French model, the interrogation of witnesses is principally a matter for
the judge at a special interlocutory proceeding called an enquête.170 In
France, although the criminal investigating judge or juge d’instruction does
not exist in civil proceedings wherein the principle of passivité de juge
applies,171 there is nevertheless a prohibition upon pre-testimonial contact
with witnesses that forbids advocates from taking witness statements
(‘résumés de la deposition’).172 However, although the regime governing pre-
testimonial contact with witnesses is relatively strict, this is counterbal-
anced by a comparative laxity concerning witness examination. Lacking
169)
Section 6, infra.
170)
Sandifer, supra note 54, 288, 303–305. See also the French Code de procédure civile (Version
consolidée au 3 mai 2010), Arts. 204–231.
171)
Code de procédure civile (Version consolidée au 3 mai 2010), Arts. 132–142.
172)
This was a contentious point in the Corfu Channel case, supra note 58, Vol. III, 245–250. In
particular, Art. 214 of the Code de procédure civile provides that ‘[l]es parties ne doivent . . . cher-
cher à influencer les témoins qui déposent, ni s’adresser directement à eux, à peine d’exclusion.’
Sarvarian /
the many technicalities known to the common law, advocates may seem-
ingly interrogate the witness at the enquête itself by virtually any method.173
This laxity is attributable to the dominant role of the judge in the interro-
gation process.
By contrast, evidence-gathering within common law systems that follow
the English model is formally174 weighted towards the parties. Witnesses
may be ‘called’ upon to testify principally by the parties themselves175
and also by the Court.176 It is not only permitted to contact witnesses
before hearing, there are detailed legal duties governing the preparation
of testimony.177 For barristers, the ethical position is complicated by
modern reforms eliminating some of the distance between the split legal
professions. Traditionally, barristers were forbidden from taking witness
statements or generally engaging in evidence-gathering exercises (being
functions exclusive to solicitors) at trial they could scrutinise the evidence
with a detached mind.178 This, in itself, was a procedural safeguard against
contamination of testimony. Although the rule has been relaxed to the
point of allowing barristers, in exceptional circumstances, to take witness
statements without a solicitor179 it is still a discouraged practice. Extra-
173)
This is presumably limited by the crime of defamation and by the general principles of the
profession requiring that advocates behave with, inter alia, dignity, respect, moderation and
courtesy – Art. 3, Décret n° 2005–790 du 12 juillet 2005 relatif aux règles de déontologie de la
profession d’avocat.
174)
However, under English law, the court is vested with wide powers to control evidence.
E.g. – r.32.1 (‘power of court to control evidence’) Civil Procedure Rules 1998 (‘CPR’): ‘(1) The
court may control the evidence by giving directions as to – (a) the issues on which it requires
evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way
in which evidence is to be placed before the court. (2) The court may use its power under this
rule to exclude evidence that would otherwise be admissible. (3) The court may limit cross-
examination.’
175)
Halsbury’s Laws of England (2009) (Vol. 11), para. 1037: ‘[a] witness is examined in chief by
or on behalf of the party for whom he is called to give evidence’ (emphasis added). Depending upon
the degree of proximity of the witness to the party and other factors, this can potentially have
great effect upon the ‘weight’ of his evidence. On the other hand, although the parties have the
right to ‘call’ witnesses that right is subject to the general control of the court over evidence and
reluctant witnesses may only be compelled to give evidence under a writ of subpoena by the
court. Thus, the degree to which the parties control evidence under the English law should not
be exaggerated.
176)
Ibid., para. 1046.
177)
Rule 33.2 et seq., CPR.
178)
Halsbury’s Laws (2009) (Vol. 66), paras. 1207 (notes 1 and 4), 1209 (note 4).
179)
Ibid.
Sarvarian /
testimonial contact with witnesses is generally permitted but must be exer-

cised with great caution, especially when the witness is in the process of
giving evidence under oath.180
The relatively greater practical involvement of parties over evidence and
especially the much greater historical recourse to lay juries as ‘tribunals of
fact’ also gave rise to the myriad technicalities of the common law over
witness examination.181 In order to protect the jury from contaminated
testimony, barristers were required to generally refrain from interrogating
their ‘own’ witnesses at the oral hearing (‘examination-in-chief ’) through
the formulation of questions indicating to that witness the answers that
he wishes to elicit (‘leading questions’).182 Trial being a truth-seeking exer-
cise, the aim during examination-in-chief is to enable the witness to say
what happened in his own words. By contrast, the focus during cross-
examination is upon the interrogator to test the credibility of the witness’
character or testimony.183
The ethical issues raised by the common law rules governing witness
examination are twofold. The first is the duty to interrogate witnesses for
the purpose of truth discovery.184 This goes to the heart of counsel’s over-
riding duty to the court, in that he may not attempt to pervert the truth.
The second is the duty of respect towards witnesses, so that irrespective of
his client’s dispositions counsel must address the witness with dignity and
courtesy.185 This includes an ethical duty to refrain from ‘impeaching [the
credibility of ] a witness in submissions without having afforded the wit-
ness an opportunity to answer the allegation in cross-examination186 as
accusing a witness of the crime of perjury is a serious matter.
In light of the relative weakness of ICSID tribunals compared with
national judges in common law and civil law systems alike, the application
of the civil law regime in which the principal interrogator is the tribunal
itself is inappropriate. The parties are much closer to the evidence and the
180)
Ibid., paras. 1207–1208. See also the discussion of the extra-testimonial contact in the Corfu
Channel case, Chapter 4, supra.
181)
Halsbury’s Laws (Vol. 11), paras. 1037–1049; (2006) (Vol. 11(3)), paras. 1433–1443.
182)
Halsbury’s Laws (2006) (Vol. 11(3)), para. 1434.
183)
Ibid., para. 1440.
184)
For example, it is forbidden to mislead witnesses by questions based upon false premises –
Halsbury’s Laws (2009) (Vol. 11), para. 1044 (note 3).
185)
‘The court has a power to stop cross-examination which is vexatious or oppressive’ – ibid.
186)
Code of Conduct of the Bar of England and Wales (2004), para. 708(i)(j).
Sarvarian /
tribunal lacks powers of compulsion towards witnesses. The principal civil

law safeguard – the prohibition upon pre-testimonial contact between
counsel and witnesses – is consequently impractical. Since such contact is
inevitable, it should be strictly regulated to prevent contamination. In the
preparation of witness statements, for example, counsel should obviously
be required to actively ensure that the statement accurately reflects the wit-
ness’ own account by preparing it in a style that (while coherent and suc-
cinct) is as close as practicable to the witness’ own words, by requiring the
witness to review and sign the statement and by avoiding in any way alter-
ations to the evidence designed to manipulate the content in order to
favour his client’s case.187
The ‘proofing’ of witnesses – a standard practice in American jurisdic-
tions that is forbidden in the English system – should be prohibited.188 This
practice is defined in ICTY jurisprudence as ‘the practice whereby a meet-
ing is held between a party to the proceedings and a witness, before the
witness is due to testify in Court, the purpose of which is to re-examine
the witness’s evidence to enable more accurate, complete and efficient
testimony.’189 However, the essence of the practice is a pre-testimonial
meeting between a party to the proceedings and a witness in which the
substance of the witness’ testimony is rehearsed. The danger of such prac-
tices is to insulate the witness to potentially adverse questioning by the
opposing party or the Tribunal that blunt weaknesses in his testimony or
otherwise inappropriately assist the case of the party that calls him.
Arguments in favour of such practices are that it can enhance the accu-
racy and efficiency of testimony for witnesses to have precise knowledge of
187)
See, e.g. – Generation Ukraine, note 38, supra.
188)
Confer Hague Principles, Principle 6.2: ‘Counsel may engage in pre-testimonial communica-
tion with a witness, subject to such rules as the international court or tribunal may have adopted.’
This is a particularly controversial matter before the international criminal tribunals, with the
ICC prohibiting it in the Lubanga case whereas the ICTY and ICTR have consistently allowed
it – The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06), Decision on the Practices of
Witness Familiarisation and Witness Proofing (8 November 2006), paras. 28–42; Decision
Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial
(30 November 2007), paras. 35–52, 56–57; Karemaker et al., ‘Witness proofing in international
criminal tribunals: a critical analysis of widening procedural divergence’, 21(3) LJIL (2008),
683–698; Ambos, ‘“Witness proofing” before the International Criminal Court: a reply to Kar-
emaker, Taylor and Pittman’, 21(4) LJIL (2008), 911–916; Karemaker et al., ‘Witness proofing
in international criminal tribunals: a response to Ambos’, 21(4) LJIL (2008), 917–923.
189)
Lubanga, Trial Chamber Decision, ibid., para. 7.
Sarvarian /
the questioning they will face.190 However, this author respectfully agrees
with the ICC Trial Chamber in Lubanga that witness coaching or ‘proof-
ing’ is not only dangerous in itself because the line between assistance and
distortion is too fine but also that it removes essential spontaneity from
witness interrogation that is often of great assistance to a tribunal in weigh-
ing credibility.191 An argument is also advanced that, even if such distor-
tion or contamination of testimony were to occur, this could be addressed
through effective cross-examination. However, this argument is not a jus-
tification for the practice itself but merely a suggestion for how its defects
can be mitigated. Moreover, even robust cross-examination does not always
succeed in breaking down a well-rehearsed witness in order to arrive at the
unvarnished truth. Although one can argue that the Tribunal has the
option of placing greater weight upon an expert called by the opposing
side (assuming that they refrain from witness coaching) or to call one ex
proprio motu, this is not only an inefficient manner of proceeding but it is
almost always impracticable for witnesses of fact who are the only indi-
viduals having the necessary information for the Tribunal to properly rule
upon factual issues.
For these reasons, this author argues that the practice of witness proof-
ing is detrimental to fair trial standards and should consequently be strictly
forbidden by ICSID tribunals. The same rationale should require counsel
to refrain from communicating with witnesses in the process of giving
testimony at all, both in order to avoid contamination and in order to
prevent the appearance of it from an innocent discussion. The strictness of
the English rules on impeachment are perhaps not appropriate to interna-
tional proceedings192 but some rule to prevent groundless accusations
would be.193 In short, ethical rules designed to regulate counsel’s conduct
to prevent wilful or accidental distortion or contamination of evidence are
necessary. Due to the cultural divergences that this section has explored,
the author suggests that parties and tribunals ought to err on the side of
190)
191)
Ibid.
192)
Ibid., 322–325.
193)
Hague Principles, Principle 7.1: ‘Counsel shall at all times treat each other, as well as wit-
nesses, third parties, experts and officers of the international court or tribunal, with due respect,
courtesy and dignity.’
Sarvarian /
caution by applying strict procedural and ethical rules in order to protect

fair trial and the integrity of the truth-seeking process.
4. Duties to Colleagues
A discrete category of ‘duty to colleagues’ is somewhat misleading, as
it is really a sub-category of duties owed to the Tribunal. This is because
each of the duties discussed impacts upon the ability of the Tribunal to
conduct its proceedings with decorum and fairness. Given the lack of a
centralised ‘bar association’ to which ethical complaints may be tendered,
it will obviously be for the Tribunal to address such matters as they arise.
Such duties are, however, also owed to one’s colleagues who thus have a
right to demand their observance and complain at their infringement.
(a) Courtesy
Like an advocate’s duty of courtesy to the Tribunal, the duty to respect
one’s colleagues194 appears almost too obvious for substantive discussion.
Nevertheless, incidents have occurred in which advocates have employed
vitriolic language of varying degrees of rudeness. A heated exchange occur-
ring between two eminent counsel at a hearing of the Corfu Channel case
seemingly prompted an admonishment by the President of the ICJ of both
counsel for their ‘lack of discipline’. Whilst the President directed his
reproof to their breaches of the Court’s order, undoubtedly the ‘reproaches
addressed to each other . . . by Counsel’ prompted his remarks and early
termination of the hearing.195 Disrespectful behaviour towards an oppos-
ing counsel196 should certainly not be tolerated by the Tribunal, for the
194)
Ibid.
195)
Corfu Channel, supra note 134, Vol. III, 188. Vol. IV, 305–316.
196)
See, e.g. – the Taylor trial before the SCSL (Transcript, 12 August 2010, pages 46092–
46103), involving senior defence counsel (Mr Courteney Griffiths QC, joint-head of Garden
Court Chambers, London) in which he insulted a prosecutor by referring to him as a “boy”,
commanding him to “sit down” rather than request evidentiary references during cross-
examination whilst banging upon his lectern with his fist. Counsel agreed to apologise to the
Court but repeatedly refused to apologise to the prosecutor until threatened by the Court with
exclusion from the proceedings. The defendant separately apologised to both the Court and
prosecutor through his junior counsel for the behaviour of his senior counsel. Mr Griffiths was
temporarily denied the right of audience by the Court but reinstated when he obeyed the Court’s
direction to apologise to the prosecutor whom he insulted. This incident not only concerns the
principle of courtesy, but also that of obedience. In the only code of conduct hearing thus far
before the SCSL, Mr Yada Williams (at that time, a defence counsel in The Prosecutor of the
Sarvarian /
reason that a calm and dignified atmosphere is imperative to conduct pro-

ceedings fairly.
(b) Cooperation
A duty of cooperation197 follows organically from a duty of courtesy because
effective cooperation engenders courtesy, and vice-versa. In most proceed-
ings, and a fortiori in proceedings in which parties wield great procedural
power such as those of the ICSID, it is vital that counsel cooperate
with one another in the interests of efficiency and effectiveness. A range of
procedural and even substantive matters can and should be resolved
between counsel without unnecessarily involving the Tribunal. Although
this most directly concerns the Tribunal, as ineffective cooperation inevita-
bly demands wasteful intervention on its part, it is also apposite to coun-
sel’s duty of due diligence to their clients because the waste of time is
ultimately reflected in the cost of proceedings.
(c) Confidentiality
Respect for the confidentiality of certain types of communication between
counsel is crucial. Although this applies most obviously in the matter of
settlement negotiation, in which a ‘without prejudice’ rule198 is required in
order to barter freely, it is even more vital regarding the inappropriate
acquirement of confidential information belonging to a party. This is
exactly what occurred in the Foresti case described above, where the cor-
rupt advocate for the Respondent disclosed on at least one occasion confi-
dential internal information concerning his party’s attitude towards a
settlement. Under the English legal ethics that applied to counsel for the
Claimants in that case, an interesting paradox seemingly results whereby
Special Court v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa (Case No. SCSL-
2004-14-T) was sanctioned by the Court for having orally and physically assaulted a Court staff
member – SCSL Decision (10 November 2005), Code of Conduct Hearing.
197)
Hague Principles, Principle 7.2: ‘Counsel shall use best endeavours to cooperate effectively
with each other.’
198)
It should be noted that there is some divergence on this rule, as certain European jurisdic-
tions recognise the confidentiality of such communications from their subject-matter whereas
other jurisdictions require that counsel make an express stipulation of confidentiality – CCBE
Code of Conduct, Commentary to Article 5.3. Thus, clarification is called for; the author favours
a presumption of confidentiality from subject-matter in order to avoid inadvertent prejudice.
Sarvarian /
they were absolutely prohibited from utilising such inappropriately gotten

information whilst also forbidden from revealing to the opposing party or
to the Tribunal that the leak had occurred.
There is a gap under that approach in that a barrister is required to with-
draw from a case for ‘professional embarrassment’ only ‘if having come
into possession of a document belonging to another party by some means
other than the normal and proper channels and having read it before he
realises that it ought to have been returned unread to the person entitled to
possession of it he would thereby be embarrassed in the discharge of his
duties by his knowledge of the contents of the document provided that he
may retire or withdraw only if he can do so without jeopardising his client’s
interest.’199 This is an onerous test to satisfy, since it is difficult to see how
withdrawal in most circumstances will not ‘jeopardise a client’s interest’
and the rule only applies with respect to documents (which did not arise in
Foresti) rather than knowledge of the existence of a leak. A preferable rule,
in the author’s view, would be not only to oblige counsel to respect the
confidentiality of improperly obtained information (not only ‘documents’)
belonging to the other side but also to notify his colleague of the existence
of a breach where there exist reasonable grounds for suspecting it.
(d) Communication
A very useful ethical rule is one that requires counsel to refrain from dis-
cussing the merits of the case with the opposing client without their
colleagues’ consent.200 This is obviously good practice to prevent misunder-
standings and miscommunications from multiplying due to the involve-
ment of a greater number of parties but also to preclude attempts at
corruption. The Foresti incident is noteworthy in this respect in that the
corrupt bargain was proposed in a meeting between an agent for the Claim-
ants and Respondent’s counsel in the absence of Claimants’ counsel. Whilst
that meeting occurred with the permission of counsel on the understand-
ing that it was a ‘social meeting’ where the substance of proceedings would
199)
Code of Conduct of Bar of England and Wales, para. 608(f ).
200)
Hague Principles, Principle 7.4: ‘Counsel shall not engage in direct communication with the
opposing party, where that party has retained counsel, except with the latter’s consent or by order
of the international court or tribunal.’
Sarvarian /
not be discussed,201 the ensuing incident illustrates the importance of con-

tacts of any kind to be done only with caution.
5. Disciplinary Sanctions
There exist no prescribed disciplinary powers for ICSID tribunals. Still less
is there any procedural framework for the fair imposition of such powers.
Nevertheless, on the basis of the ‘inherent jurisdiction’ analysis below it is
assumed that ICSID tribunals may – and indeed have – exclude counsel
from their proceedings in the interest of protecting procedural integrity
and fair trial. Given that this is on the extreme end of potential disciplinary
sanctions, it may be posited that more moderate sanctions – public admon-
ishment, fines or ‘personal costs orders’, suspension from proceedings or
reporting to national bar authorities – are included within the range of
sanctions that tribunals may mete out to counsel that infringe ethical
principles.
However, a more sophisticated procedure is required in order to ensure
that such powers are exercised wisely. Certain principles may be tentatively
suggested for consideration. Representatives should have a right to a fair
hearing before the Tribunal, with an opportunity to answer the allegations
against them before any decision is taken concerning sanctions.202 Sanc-
tions should be proportionate to the severity of the misconduct; excluding
counsel on the basis of a minor infraction, particularly late in proceedings,
would be prejudicial to justice. Such principles should apply a fortiori
to ICSID tribunals because, unlike international criminal tribunals, there
is no sophisticated disciplinary mechanism constructed especially for
the handling of complaints against the professional conduct of counsel
with – crucially – a right of appeal.
A crucial point is that the ICSID system today is primitive in dealing
with such matters. Consequently, tribunals will have to build incremen-
tally from scratch and apply even more than ordinary care in dealing with
such issues. With appropriate caution (e.g. – account taken of differences
of procedure and jurisdiction), reference to the nascent doctrine being
201)
Witness Statement of Mario Vittorio Marcenaro, supra note 130, para. 7.9.
202)
See the criticism of the ICTY Trial Chamber’s failure to observe this requirement of natural
justice in the Furundžija case in Arbour, ‘Legal Professionalism and International Criminal Pro-
ceedings’, 4 Journal of International Criminal Justice (2006), 674–685, 679.
Sarvarian /
developed by other international tribunals – particularly in the criminal

law field – would be useful. Although ex post facto application of ethical
rules can be safely done with flagrant examples of dishonesty or incompe-
tence (e.g. – Foresti or Generation Ukraine) this would be controversial
upon particularly contentious ethical issues such as conflicts of interest,
confidentiality or handling of evidence. Thus, it is suggested that a very
useful procedure for tribunals to adopt would be to require the representa-
tives of all parties to sign and deposit a copy of a ‘code of conduct’ (e.g. –
the Hague Principles or some variation of them) at the commencement of
proceedings. By putting representatives on notice of the standards of con-
duct expected of them, this would not only act as a deterrent upon flagrant
misconduct and a clarification of the nicer issues but would also provide
tribunals with a textual basis for the imposition of sanctions.
Other creative methods of improving tribunals’ toolkits may be consid-
ered. A public admonishment delivered to a representative may, in a com-
petitive legal services marketplace, be sufficient punishment for minor
offences. The imposition of personal costs orders would potentially be very
useful, particularly in concentrating representatives’ minds upon the need
for succinctness in pleadings. Whilst parties may be punished through the
existing costs regimes, it would be more just for representatives to bear the
consequences of their own inefficiency or incompetence. The reporting of
professional counsel to their national disciplinary authority, typically a bar
association, is a potentially useful supplementary tool for particularly grave
infractions because of the threat of disbarment.
An important issue to consider is the degree of reliance that can credibly
be placed in individual arbitral tribunals to judiciously enforce breaches of
ethical rules. Many arbitrators (and, indeed, judges of international courts),
after all, have never themselves acted as professional counsel and conse-
quently may not recognise or understand the ethical issues that arise.
Moreover, the assumption in relying upon arbitrators to fulfil this regula-
tory role is that they will themselves have the requisite degree of authority
and integrity to do so with credibility. Regrettably, this is not always the
case.203 Whilst the current atmosphere indicates that such a move is prema-
ture, it is suggested that the creation of an external regulatory authority
203)
See, for example, accounts concerning the conduct of arbitrators in the early years of the
Iran-US Claims Tribunal in Khan, The Iran-United States Claims Tribunal: Controversies, Cases
and Contribution (1990), 41–47, 61–77.
Sarvarian /
over counsel before international courts and tribunals (including ICSID

tribunals) is both necessary and inevitable.
6. Integrity of Proceedings, Fair Trial and Equality of Arms in Investment

Arbitration
If one accepts this article’s conclusion that practice suggests a pressing need
for such initiatives, there remains the question of the jurisprudential basis
for tribunals to do so. Whilst it appears accepted that there exist certain
minimal standards of fair trial applicable to commercial arbitration that
are binding upon the host State,204 the situation concerning inter-State or
investment arbitration is more complicated. This is due to the fact that
before ICSID tribunals the possibility of external review by the judicial
system of the host State is, for obvious reasons, expressly excluded. Since
the host State lacks jurisdiction to regulate either set of proceedings, it is
not obliged to ensure that they conform to regional or universal standards
of fair trial.205 Thus, the first question to be answered is whether funda-
mental standards of fair trial apply to arbitral proceedings.
Perhaps understandably, in light of the nascent state of international
human rights law in 1966, the ICSID Convention does not prescribe stan-
dards of fair trial. More surprisingly, the Arbitration Rules likewise omit
any mention of impartiality and equality of arms as fundamental principles
of procedural fairness.206 Thus, except where conflicting with mandatory
provisions of the Convention,207 under positive law the parties are free to
adopt whatever procedural rules they wish. One commentator, however,
has written:
204)
Petrochilos, Procedural Law in International Arbitration (2003), 109–165.
205)
Bankovic and others v. Belgium and others (Appl. No. 52207/99), Admissibility Decision of
12 December 2001, paras. 59–66. See also Clayton and Tomlinson, The Law of Human Rights
(2009), 128 (para. 3.17).
206)
Whilst Petrochilos, supra note 206, 144 (note 160) cites Rule 50(1)(c)(iii) in support of his
proposition that equality is ‘an imperative procedural rule in inter-state proceedings, which is to
be found in all modern arbitration rules’, Rule 50(1)(c)(iii) – itself an implementing provision of
Article 52(1) of the ICSID Convention – does not expressly prescribe this principle: ‘in an appli-
cation for annulment [of an award] . . . the . . . grounds are limited to the following: that the Tri-
bunal was not properly constituted; that the Tribunal has manifestly exceeded its powers; that
there was corruption on the part of a member of the Tribunal; that there has been a serious
departure from a fundamental rule of procedure; that the award has failed to state the reasons on
which it is based.’
207)
In particular, Articles 47–49, 56.
Sarvarian /
An additional restriction on the choice of procedural rules by the par-

ties arises, in our opinion, from the requirement that there be a mini-
mum standard of procedural rules in any arbitration proceedings.
From the provisions of the Convention . . . it can be seen that the arbi-
tration proceedings at the Centre are to be conducted according to the
provisions of the Convention and to the rules chosen by the parties (if
they indeed make such a choice). We might, therefore, conclude that
the provisions of the Convention satisfy the required minimum for the
existence of fair arbitration proceedings. Examination of the above
provisions reveals that this is not the case. For example, the Conven-
tion does not mention the obligation binding upon every tribunal to
hear the arguments of both parties (or even to receive the pleadings in
writing), nor the right of each party to know the arguments of the
opposing side and to respond thereto, nor to the prohibition on the
arbitrator against any delegation of his authority to decide the dispute
to another person.
These rules of procedure are essential to the conduct of any arbitra-
tion; they are inherent in any fair judicial proceedings, and it is sur-
prising that they are not included in the provisions of the Convention.
In most cases, the parties will choose procedural rules that grant them
these basic rights. But one must ask whether a tribunal of the Centre
would be bound to follow procedural rules that do not include these
fundamental provisions. It seems to us that a tribunal is obliged to fol-
low the most fundamental rules of procedure which ensure a fair hear-
ing, even if the parties have not specified so in the arbitration rules,
and even if the parties have specified the opposite in such rules. Any
other answer could undermine one of the basic aims of the Centre
(albeit one that is not mentioned explicitly in the Convention), which
is to settle investment disputes between host states and foreign inves-
tors in a fair manner. To this we must add that the obligation imposed
by the Convention upon all the contracting states to recognize and to
enforce the arbitral awards of the Centre, also means that the awards
must be rendered following fair arbitration proceedings, for otherwise,
difficulties may arise in the enforcement proceedings in various states.208
208)
Hirsch, The Arbitration Mechanism of the International Centre for the Settlement of Investment
Disputes (1993), 114–115.
Sarvarian /
Concerning the proposition that – irrespective of omission or contradic-

tion in the parties’ rules of procedure – an ICSID tribunal is bound by
fundamental standards of impartiality and fair trial, this author respect-
fully agrees. However, despite the attractiveness of the argument that these
principles are implied terms of the Convention, it is suggested that that
positivist basis is insufficient in articulating more sophisticated standards
of fair trial that have since come to be considered essential in human rights
jurisprudence. For the purposes of this article, it is impossible to argue that
the drafters of the Convention had any implied intention in an unwritten
provision of fair trial to impose upon arbitral tribunals a duty to impose
professionalism upon representatives. On the contrary, the laissez-faire
approach of the Convention to the representation of parties reflects pre-
cisely the opposite intention. As one arbitral tribunal has noted, ‘The
ICSID Convention and Rules do not . . . explicitly give the power to tribu-
nals to exclude counsel. To the contrary, we readily accept that as a general
rule parties may seek such representation as they see fit – and that this is a
fundamental principle.’209
However, it is suggested that the more sophisticated principles of fair
trial – such as the duty to ensure fair trial and equality of arms between
parties and to protect the integrity of its proceedings – nevertheless form
part of the procedural law of ICSID arbitrations. The jurisprudential basis
for this proposition lies not upon an express power conferred by statute –
since it runs counter to the general right of parties under the Convention
to frame procedural rules for their own arbitrations210 – but rather in the
209)
Hrvatska, supra note 97, 10 (para. 24). See also the pending arbitration of Rompetrol, supra
note 106, para. 14: ‘It is common ground between the Parties that the rules governing the pres-
ent arbitration proceedings, i.e. the ICSID Convention and the Arbitration Rules, contain no
provision allowing in terms for a challenge to the appointment by a Party of counsel to represent
it in an ICSID arbitration. Some other source for such a challenge must therefore be found,
which the Respondent seeks to do by implication from the general tenor of the Arbitration
Rules, and by invoking an inherent general power on the part of any tribunal to police the integ-
rity of its proceedings.’
210)
Although the arbitral tribunal in Hrvatska’s citation of Article 56(1) of the ICSID Conven-
tion as an ‘overriding exception’ to the ‘fundamental principle’ that ‘parties may seek such repre-
sentation as they see fit’ sufficed in the very specific context of that proceeding – namely, the
‘immutability’ of the Tribunal from a risk of appearance of bias – neither that provision nor
Article 52(1)(d) of the Convention discussed above provide an express power for fair trial. In
particular, the reference to ‘fundamental rule of procedure’ within Article 52(1)(d) can only be
interpreted as a rule of procedure prescribed by the Convention which fair trial clearly is not.
Sarvarian /
doctrine of ‘inherent powers’ of international courts and tribunals.211

Whilst there is insufficient scope for an extended jurisprudential examina-
tion of this doctrine, this article respectfully adopts the thesis of Dr Ches-
ter Brown that the doctrine exists for the purpose ensuring ‘the fulfilment
of the functions of international courts’.212 However, it is suggested that
the doctrine is based upon absolute principles of natural law, namely, that
courts and tribunals (national or international alike) must adjudicate or
arbitrate with impartiality and fairness.213 These inalienable principles,
211)
Brown, ‘The Inherent Powers of International Courts and Tribunals’, 76 BYIL (2005) 195–
244; Gaeta, ‘Inherent Powers of International Courts and Tribunals’ in Vohrah et al., supra note
5, 353–372. The Iran-US Claims Tribunal has reserved its position concerning the question of
whether it has an inherent power to revise an award where the award was based upon ‘forged
documents or perjury’ – see Ram International v. Air Force of Iran, 29 Iran-US C.T.R. (1994)
383–392, 387–388 (paras. 16–17). However, it has adopted the doctrine in holding that ‘Iran
has an obligation to take steps to stay [a parallel] lawsuit in Tehran’ – E-Systems, Inc. v. Islamic
Republic of Iran, Bank Melli Iran (Case No. 388), Interim Award (4 February 1983), 2 Iran-US
C.T.R. (1984), 51–64, 59. Similarly, see its adoption of inherent powers in the context of juris-
diction and provisional measures – Brown, ibid., 215 (note 122) and 218 (note 140). However,
a passing comment by one Chamber found that, specifically concerning disciplinary powers
towards representatives, the Tribunal ‘does not have the power to impose sanctions or disciplin-
ary measures for the presentation of false evidence’ – Gabay, note 163, supra. However, this
unreasoned comment should not be regarded as authoritative because it was only the opinion of
one Chamber. Specifically, the possibility cannot be excluded that the Tribunal, invoking Art.
15(1) of its Rules of Procedure alone or in tandem with an inherent power, would exclude a
representative from proceedings who indulged in fraudulent or otherwise abusive misconduct.
212)
This applies whether they are defined as ‘private’ functions in settling disputes before them
or ‘public’ functions to ensure the proper administration of the international judicial system –
ibid., 228–231.
213)
Whilst this article does not allow for an extended consideration of the development of ‘natu-
ral justice’ in the procedural and deontological sense of the term, at the international level the
idea that arbitration should be conducted impartially may be traced to inter-municipal arbitra-
tions in ancient Greece, to the lex naturalis of Roman law (e.g. – maxims such as audi alteram
partem and nemo judex in causa sua) as well as to classic treatises of medieval and Renaissance
Europe. Certainly, it may be considered to be a core principle of the Christian legal philosophy
(which may be contrasted with the consequentialist ethical philosophies of the Confucian and
Islamic traditions) underpinning the modern international legal system. These basic tenets of
natural justice may consequently be found in domestic legal orders of common law and civil law
systems which are rooted in Christianity. An apt example of this jurisprudential link between
natural and positive law is the English jurisdiction of ‘equity’, originally a clerical system of jus-
tice rooted in the ecclesiastical jurisdiction of the Pope, and basic tenets of equity that are encap-
sulated within the doctrine of ‘natural justice’ requiring that bias or the appearance of bias be
avoided (R v. Gough [1993] AC 646) and that both parties be equally heard. The most sophisti-
cated source of positive law for fair trial is, of course, the field of international human rights law –
on the link between the English doctrine of natural justice and Article 6 (‘Right to a Fair Trial’)
Sarvarian /
which supersede positive law, oblige international courts and tribunals of

justice to discharge their duty to justice by dealing with the parties before
them with justice.
The rationale for this doctrine is twofold: 1) to preserve public confi-
dence in the neutrality and fairness of the international judicial system;214
and 2) to maintain the trust of parties to arbitral proceedings in their neu-
trality and fairness. In what is still the quite nascent field of international
legal procedure, the importance of such powers for courts and tribunals to
maintain trust in their integrity is particularly acute. In the exercise of their
powers, international courts and tribunals should be particularly guided by
international human rights jurisprudence expounding the principles of fair
trial. In doing so, attention should be given to the nationalities of the par-
ties to attempt to find a common standard. For example, in an ICSID
arbitration where the State is party to the European Convention on Human
Rights 1950 (‘ECHR’) and the individual or company is a national of a
State that is likewise party to that Convention, the jurisprudence of the
European Court of Human Rights (‘Strasbourg Court’) will clearly be of
particular relevance.215 However, this factor should not restrict a tribunal
from relying flexibly upon more developed jurisprudence from other
of the European Convention on Human Rights 1950, see R (Wright and others) v. (1) Secretary
of State for Health and (2) Secretary of State for Education and Skills [2007] EWCA Civ 999.
214)
One commentator relies upon the ‘doctrine of public policy’ in commercial arbitration to
support the proposition that ‘arbitration tribunals of the Centre must take into account the rules
of public policy of the international community’ – Hirsch, supra note 208, 113–114. This applies
no less at the domestic level. See, e.g. the judgment of Lord Denning M.R. on bias administrative
law proceedings in Metropolitan Properties Co. (F.G.C.) Ltd. v Lannon and Others [1968] 1 Q.B.
577, 599: ‘There must be circumstances from which a reasonable man would think it likely or
probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly
at the expense of the other. The court will not inquire whether he did, in fact, favour one side
unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice
must be rooted in confidence: and confidence is destroyed when right-minded people go away
thinking: “The judge was biased.”’
215)
See, for example, Rompetrol, supra note 106, 10 (note 9) where the Claimant is an oil com-
pany headquartered in the Netherlands with its central office in Romania. Whilst the Tribunal
did not expressly rely upon the nationality of the parties, or indeed upon any other reason, for
the applicability of the Article 6(1) of the ECHR to its proceedings it did, in referring to prac-
tices at the European Court of Justice (‘ECJ’) and ECtHR, write ‘it seems not inappropriate to
cite these European examples in a Netherlands/Romania context’. Similarly, a cross-regional
basis may be found in the jurisprudence of the UN Human Rights Committee concerning the
International Covenant on Civil and Political Rights 1966.
Sarvarian /
human rights tribunals in order to reach a principled outcome that serves

its duty to justice.
The pronouncements of the ICSID tribunals that have hitherto addressed
the matter of inherent powers are inconsistent. The Tribunal in Libananco
declared:
These allegations and counter-allegations strike at principles which lie

at the very heart of the ICSID arbitral process, and the Tribunal is
bound to approach them accordingly. Among the principles affected
are: basic procedural fairness, respect for confidentiality and legal priv-
ilege . . . the right of parties to seek advice and to advance their respec-
tive cases freely and without interference; and no doubt others as well.
For its own part, the Tribunal would add to the list respect for the
Tribunal itself, as the organ freely chosen by the Parties for the binding
settlement of their dispute in accordance with the ICSID Convention.
It requires no further recital by the Tribunal to establish either that
these are indeed fundamental principles, or why they are. Nor does the
Tribunal doubt for a moment that, like any other international tribu-
nal, it must be regarded as endowed with the inherent powers required
to preserve the integrity of its own process – even if the remedies open
to it are necessarily different from those that might be available to a
domestic court of law in an ICSID Member State. The Tribunal would
express the principle as being that parties have an obligation to arbi-
trate fairly and in good faith and that an arbitral tribunal has the inher-
ent jurisdiction to ensure that this obligation is complied with; this
principle applies in all arbitrations, including investment arbitration,
and to all parties, including States (even in the exercise of their sover-
eign powers).216
The Tribunal did not engage in detailed jurisprudential analysis and did
not cite doctrine justifying these assertions. Whilst the remedies concerned
did not directly concern counsel in that the orders sought were directed at
controlling parties’ conduct rather than that of counsel personally, the dec-
laration is indirectly apposite because of the invocation of underlying fair
trial principles and the shared threat to procedural integrity. The Tribunal
216)
Libananco, supra note 81, para. 78.
Sarvarian /
in Hrvatska relied upon Article 44 of the ICSID Convention as providing

a partial ‘textual foothold’ for the inherent powers doctrine.217 Although
Article 44 provides a positive power to prescribe for procedural lacunae –
which will apply to many if not most ethical issues for counsel – it clearly
does not assist in overcoming the problem of rules expressly selected by the
parties that conflict with fair trial principles. Finally, the Tribunal in Rom-
petrol (one member of which was also a member of the panel in Libananco,
though that arbitration was not cited) reserved its position with respect to
the ‘inherent powers’ doctrine by rejecting the application on the ground
that it was unjustified by the circumstances.218 It is noteworthy, however,
that that Tribunal seemingly grounded its hypothetical ‘inherent powers’
in the right to a fair trial and acknowledged that these would be opposed
to the statutory framework based upon the right of parties to choose their
own legal representation.219
Ironically, parties (particularly States) in many if not most cases are
likely to resist measures fettering what they perceive as their prerogatives in
controlling the presentation of their cases. For some parties, such privileges
better enable them to corrupt their representatives in order to attempt to
gain any unfair advantage they can get away with in the proceedings.220 For
other parties, particularly States, this resistance is grounded in a fear that,
if they ‘lose control’ of their cases, they are less likely to win.221 In its anal-
ysis of ICSID cases in which ethical issues have arisen, this article seeks to
demonstrate that not only is there a pressing need for robust regulation of
representation of parties before the ICSID and that that need serves the
interests not only of tribunals but, crucially, of those parties who wish only
to be given a fair hearing with the opportunity to put their cases with
equality and effectiveness.
Having set out the hypothesis that fair trial standards from human rights
jurisprudence applies to ICSID arbitral proceedings through the doctrine
of inherent powers, the following question arises: who is responsible for
ensuring that fair trial standards are observed in arbitral proceedings? The
217)
Supra note 97, paras. 33–34.
218)
Supra note 111, paras. 25–27.
219)
Ibid., paras. 15–16, 20.
220)
221)
Ibid.
Sarvarian /
ICSID is vested with international legal personality.222 It does not necessar-

ily follow, however, that it is ipso jure vested with responsibility for the
conduct of arbitral tribunals.223 Whilst the Administrative Council of the
Centre was tasked with adopting the ICSID Arbitration Rules,224 the par-
ties to a particular arbitration are permitted under the Convention to der-
ogate from most of its provisions.225 Therefore, on a strictly positivist legal
analysis, since the Centre has no authority under the Convention to require
arbitrating parties to observe such standards, it follows that it is not respon-
sible for the conduct of arbitral tribunals nominally conducted under the
ICSID framework.
On the basis of the foregoing proposition that fair trial standards apply
to ICSID proceedings and that they may be enforced through the doctrine
of inherent powers, this conclusion is rejected. If one accepts that inalienable
standards of fair trial apply to ICSID proceedings that override parties’
freedom of choice with respect to arbitration rules and that tribunals have
a duty to exercise their inherent powers to preserve the integrity of their
proceedings, it follows that ICSID tribunals – whose actions for that pur-
pose would presumably be attributable to the Centre, not to the parties226 –
are responsible for ensuring fair trial. This is most obviously manifested in
the review procedure by ad hoc committees of awards made by tribunals.227
222)
ICSID Convention, Art. 18: ‘The Centre shall have full international legal personality. The
legal capacity of the Centre shall include the capacity: (a) to contract; (b) to acquire and dispose
of movable and immovable property; (c) to institute legal proceedings.’
223)
The responsibility of States and international organisations is, of course, a vast, complicated
and developing field. However, for present purposes, the applicable proposition of the law of
responsibility is that an international organisation is only responsible for such acts as it has been
vested with authority to perform. Thus, the Centre is only responsible to the extent that it is
empowered under the Convention.
224)
ICSID Convention, Art. 6(1)(c).
225)
Schreuer, The ICSID Convention: A Commentary (2001), 669 (paras. 11–12).
226)
International Law Commission Draft Articles on the Responsibility of International Orga-
nizations, Doc. A/CN.4/L.743 (2 June 2009), 61st Session, Art. 4 (‘General rule on attribution
of conduct to an international organization): 1) The conduct of an organ or agent of an interna-
tional organization in the performance of functions of that organ or agent shall be considered as
an act of that organization under international law whatever position the organ or agent holds in
respect of the organization. 2) Rules of the organization shall apply to the determination of the
functions of its organs and agents.’ Confer Crawford, The International Law Commission’s Articles
on State Responsibility (2002), 310–311 (especially note 878); Behrami v. France, Saramati v.
France, Germany and Norway (2007) 45 EHRR SE 85, paras. 133–149; Al-Jedda v. Secretary of
State for Defence [2008] 1 A.C. 332, per Lord Bingham of Cornhill, paras. 18–25.
227)
See, however, the limitations discussed at note 206, supra.
Sarvarian /
Were one to reject this analysis on the ground that the parties’ freedom
of choice defeats any duty of the tribunal to ensure fair trial, an intriguing
alternative arises. For in that case, it would plainly follow that legal respon-
sibility for the conduct of proceedings devolves to the parties rather than
to the Centre. In that case, a potential argument is that States that commit
abuse in their capacity as parties to arbitral proceedings – for example, by
assassinating, kidnapping or attempting to intimidate an arbitrator, repre-
sentative, witness or other participant228 – would thereby be held respon-
sible for violating fair trial standards before human rights courts and
tribunals.229 Although fair trial provisions of human rights instruments are
designed to apply to the exercise by States of their judicial powers or to
their supervision of other entities (e.g. – commercial arbitrations) exercis-
ing them on their territory, it is suggested that – if one accepts that party
discretion trumps tribunal powers – the State, in framing rules of proce-
dure for investment arbitrations and in acting as a litigant, is similarly
exercising its ‘jurisdiction’ towards the other party in an equally impactful
manner. The only substantive difference lies in the fact that the executive
organs of the State will be acting in an investment arbitration whereas the
judicial and legislative organs exercise State powers in the regulation of
commercial arbitration on State territory.
The second objection that may be made to the introduction of profes-
sionalism is that there is no need for it. In other words, that a tribunal has
hitherto been able to adequately do its work without recourse to such rules
they are ipso facto unnecessary. This argument may likewise be rejected for
two reasons. First, it ignores the possibility of future scandal occurring
such that would present a grave threat to the integrity of the Centre. Sec-
ond, this article argues that it is disproved by practice. The reality is that
tribunals have fairly often been forced to grapple with the two problems of
representational conduct that this article addresses, namely, flagrant dis-
honesty or incompetence and cultural differences of appropriate judicial
228)
Notes 78–84, supra.
229)
In the European system, this would require a novel interpretation of the term ‘jurisdiction’
within Article 1 of the ECHR: ‘The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of this Convention.’ Territoriality
clearly would not apply due to the exclusion of the judicial system of the host State from the
arbitral process. The meaning of jurisdiction under the Convention is primarily but not exclu-
sively territorial in nature with other forms requiring special justification – see (in a very different
context) the leading authority of Bankovic, supra note 205, paras. 59–66.
Sarvarian /
procedure. Thus, it is proposed that the introduction of professionalism

would be beneficial in filling a lacuna in its procedure.
A final and critical problem to note with respect to the regulatory juris-
diction of ICSID tribunals is that of ‘double deontology’ or conflicts of
jurisdictions with national bars exercising extraterritorial jurisdiction over
the conduct of their members before international courts and tribunals.230
It is obvious that, to command respect, the ethical rules of international
tribunals must be supreme for their own purposes. Nevertheless, interna-
tional criminal tribunals have encountered counsel who have – despite the
supremacy of tribunals’ codes, which counsel accept upon being admitted
to proceedings – sought to invoke national rules in order to justify a par-
ticular course of conduct that they wish to pursue.231 There have also been
occasions in which national bars have attempted to assert extraterritorial
jurisdiction with respect to counsel’s conduct before an international crim-
inal tribunal.232 Whilst the eventual solution to this problem lies in the
230)
See, e.g. – the ‘International Practice Rules’ of the Code of Conduct of the Bar of England
and Wales, Annex A, para. 2: ‘In connection with any International work, a barrister must com-
ply with any applicable rule of conduct prescribed by the law or by any national or local Bar of
(a) the place where the work is or is to be performed (b) the place where any proceedings or mat-
ters to which the work relates are taking place or contemplated, unless such rule is inconsistent
with any requirement of Part III of this Code (“Fundamental Principles”).’ See also Rule 8.5(a)
of the American Bar Association Model Rules of Professional Conduct, incorporated into the bar
rules of eighteen state jurisdictions (including Rule 8.5(a) of the New York State Bar Association
Rules of Professional Conduct): ‘A lawyer admitted to practice in this state is subject to the dis-
ciplinary authority of this state, regardless of where the lawyer’s conduct occurs. A lawyer may be
subject to the disciplinary authority of both this state and another jurisdiction where the lawyer
is admitted for the same conduct.’
231)
E.g. – note 74, supra.
232)
On 10 November 2009, Serbian counsel before the ICTY in the case of Prosecutor v. Mico
Stanisić and Stojan Zupljanin (IT-08–91–T) were instructed by the Serbian Bar Association not
to appear before the Tribunal pursuant to its general strike prompted by a pay dispute with the
Serbian Government. Any lawyer who did not go on strike was threatened with disbarment. The
Trial Chamber decided to suspend them for a few days, when the strike would end, and appointed
standby counsel for the interim period. Although the standby counsel (Mr Karim Khan) and
the affected accused (Mr Zupljanin) both applied to the Chamber to allow him to self-represent,
the Chamber rejected the application. It also rejected the suggestion offered by Mr Khan that the
Tribunal to ‘remind all parties and all states that both the code of conduct of members of the bar
takes precedence’ and to declare that the disbarment of counsel for obeying an order to appear
before the Tribunal would not be tolerated. The paradox of the incident is that, had counsel
obeyed such an order and been disbarred, they would have lost their rights of admission before
the Tribunal. A potential solution to the problem may have been to threaten to hold the Serbian
Bar Association, presumably a legal person in Serbia, in contempt under Rule 77(A)(v): ‘The
Sarvarian /
recognition by national bars of the primacy of the regulatory jurisdiction

of international tribunals for their own proceedings, the primitive state
of regulation before ICSID tribunals renders this impracticable in the
near-term.
III. Conclusions
To recapitulate, the following observations are offered from the preced-
ing analysis of the procedural rules and cases of ICSID practice and
procedure:
1) Admission requirements to entrench existing practice by amending

Rule 18 of the Arbitration Rules and by creating a ‘list system’ to
require representatives to be professional advocates are desirable,
with related issues including the exclusion of witnesses, consider-
ation of the status of employed counsel and requiring an adequate
level of expertise in order to protect inexperienced parties;
2) Financial parity between parties in retaining decent counsel should
be actively ensured based upon evidence that vulnerable parties
have been unable to present their cases effectively;
3) Ethical standards of conduct are needed in order to deter flagrant
misconduct by representatives as well as to harmonise divergent
national standards on contentious procedural issues, both of which
tribunals have had to contend with;
4) Should parties not prescribe such ethical rules for their representa-
tives, tribunals should exercise their express power to fill lacunae by
requiring representatives at the outset of proceedings to sign a code
of conduct (such as the Hague Principles);
5) Procedural rules agreed to by the parties that infringe minimal fair
trial standards should be disregarded by tribunals as offensive to
natural justice principles of impartiality and fairness;
Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and
wilfully interfere with its administration of justice, including any person who . . . threatens, intim-
idates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of pre-
venting that other person with complying with an obligation under an order of a Judge or
Chamber’ (emphases added).
Sarvarian /
6) ICSID tribunals have an inherent jurisdiction through natural law

to regulate their own proceedings despite the laissez-faire ICSID
statutory framework but, in imposing disciplinary sanctions, tribu-
nals should exercise great care to ensure that they do so fairly and
they should be creative in doing so in order to ensure that sanctions
are commensurate to the misconduct; and
7) When in doubt, an advisable rule of thumb is to opt for the stricter
standard of professional conduct as it is better to err on the side of
caution.
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The Law and Practice of

International Courts and Tribunals 10 (2011) 67–134 brill.nl/lape

Problems of Ethical Standards for Representatives

the persons who may be admitted to the profession; 2) ethical standards of

Any arbitration proceedings shall be conducted in accordance with the

(1) Each party may be represented or assisted by agents, counsel or

party to the Secretary-General, who shall promptly inform the

The representational concept of agency, originating in the beginnings of

In practice, parties have nearly always been represented by lawyers.

in arbitration with ICSID experience. The majority of lawyers repre-

In light of what seems to be the almost invariable practice of instructing

independence from their clients. Fifthly, persons should not be able to

ship of a national bar obviates such a beneﬁt because academic lawyers do

Thus, it may be seen that competent legal representation and equality of

Professor Wälde cites two compelling examples. In Generation Ukraine,36

of a single expenditure . . . the Claimant’s approach to ﬁlling that evi-

Such cases illustrate two pressing needs, namely, professional competence

or US $351,260,000 – ‘Seychelles at a glance’, http://devdata.worldbank.org/AAG/syc_aag

ties, rather than counsel, so that they may be submitted to questioning

an admission requirement that excludes currently serving arbitrators as

ICSID Convention provides that the Arbitration Rules shall be adopted by

While particular types of litigation misconduct may more frequently

reasons, is pre-eminent in the international judicial system. Whilst whole

2. Duties to the Client

evidence to sustain crucial assertions of fact or a recent law or precedent

he wishes to hear.91 If, in his professional judgement, a client is insisting

(c) Conﬂict of Interest

issue of personal links has arisen in commercial arbitration, it has yet to do

the representative. Invoking an ‘inherent power’, considered in detail

If that be the regime applying to an arbitrator, the ICSID Convention

This author respectfully disagrees with this deﬁnition of counsel’s role as

professional representatives whose national bars exercise extraterritorial

General, was in fact ﬁnancing Grenada’s litigation costs.118 Although the

community at the unscrupulousness of certain powerful law ﬁrms that

Could counsel ethically utilise the conﬁdential information about internal

In tracing the negotiating history of Foresti, it seems noteworthy in this

communication,131 it seems plausible that such disclosures may have been

3. Duties to the Tribunal

mistakes, be corrupted or behave arbitrarily. In such an event, where fair

unilaterally assert. Similarly, in a case before the SCSL a court-assigned

(d) Ex Parte Communication

Naturally, any procedural impropriety on the part of an arbitrator should

(e) Documentary Evidence

attempt to abusively invoke ‘executive privilege’ in order to conceal docu-

embarrassed”.157 From the ethical perspective, the incident is troubling in

A recent example of fraudulent evidence being adduced and of arguably

On the basis of the testimony of the Respondent’s expert witness and

the right to appoint their witnesses (particularly experts) as representatives

testimonial contact with witnesses is generally permitted but must be exer-

tribunal lacks powers of compulsion towards witnesses. The principal civil

caution by applying strict procedural and ethical rules in order to protect

reason that a calm and digniﬁed atmosphere is imperative to conduct pro-

they were absolutely prohibited from utilising such inappropriately gotten

not be discussed,201 the ensuing incident illustrates the importance of con-

developed by other international tribunals – particularly in the criminal

over counsel before international courts and tribunals (including ICSID

6. Integrity of Proceedings, Fair Trial and Equality of Arms in Investment

An additional restriction on the choice of procedural rules by the par-

Concerning the proposition that – irrespective of omission or contradic-

doctrine of ‘inherent powers’ of international courts and tribunals.211

which supersede positive law, oblige international courts and tribunals of

human rights tribunals in order to reach a principled outcome that serves

These allegations and counter-allegations strike at principles which lie