A second meeting of the ASA working group on counsel ethics in arbitration took place earlier this year, on 27 June, at the new conference and meeting center of the Graduate Institute of International and Development Studies in Geneva, with the aim of determining whether further action by arbitration institutions and associations was needed. (The statement on the first meeting, which included representatives from CIArb, IBA, ICC, NAI, SIAC, SAA, SCC, SCAI, VIAC and WIPO, is available here.)
For reference, after the initial meeting of the group in November 2015, which considered whether a Global Arbitration Ethics Council might be a solution to a perceived problem, it was agreed that further research was needed into the prevalence of ethics-related complaints concerning counsel in international arbitration. Participating institutions conducted some preliminary research, and ASA and other participating associations contacted a number of bar councils internationally (and at the cantonal level in Switzerland). The results of these efforts fed into the June meeting, which was attended by representatives of CIArb, CPR, DIS, NAI, SCAI, VIAC and WIPO, in addition to ASA, the Swiss Arbitration Association.
The group reached the following conclusions:
1. On the basis of the research efforts conducted so far efforts to collect empirical data on the frequency and nature of complaints addressed to national bar councils or supervisory bodies, it appears that there are extremely few complaints being lodged in relation to international arbitration. That said, the working group’s fact-finding should continue, with the results being communicated to all institutions and associations expressing interest.
2. It would appear that what is sometimes referred to as issues of “counsel ethics” actually relates to (a) orderly conduct and integrity of the arbitral proceedings, (b) admissibility and weighing of evidence and (c) independence and impartiality of arbitrators. For issues (a) and (b), arbitrators already have broad powers to address them; issue (c) is to be handled by the body that would rule on challenges of arbitrators (institutions or, in ad hoc arbitration, the juge d’appui).
3. The real problem is not a lack of ethical rules, but the fact that arbitrators may still be reluctant to exercise their powers in relation to (a) and (b). One possible way forward to remedy this situation would be to explore whether institutional rules could be more explicit as to identifying the nature of unacceptable behavior, and what the tribunal can be expected to do in terms of imposing costs on the offending party in the cost award. As for questions in relation to (c), in particular appointment of counsel at a later stage in the proceedings with the effect of conflicting an arbitrator, this should be regulated more clearly in institutional rules.
4. As for issues that are truly of an ethical nature in the narrow sense of the term, there was a general consensus that it is highly undesirable for an arbitral tribunal to take decisions on such matters against counsel appearing before it.
5. One possible way forward that could be explored for purely ethical issues would be for arbitral associations to discuss internally whether they would wish to adopt internal disciplinary procedures similar to those of the CIArb, since this could address the concern expressed by some that the arbitral community must be seen to be auto-regulating seriously.
6. In light of the above, the creation of the “Global Arbitration Ethics Council” is an idea whose time has not yet come. However, the idea may be revisited in the future; whether this happens may depend on the outcome and, as the case may be, practical implementation of the discussion on internal disciplinary procedures within arbitration associations.
7. The activity of the working group will continue to ensure an exchange of useful practices, with the understanding that a broad and inclusive approach would be most productive, i.e. that further institutions, associations and stakeholders (in particular users) should be invited to join the working group.
In light of these conclusions, interested parties are invited to contact email@example.com, should they wish to contribute to ASA’s work in the area of counsel ethics.