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Conference Report: “Ethics in International Arbitration: The Role and Conduct of Arbitrator and Counsel” – Milan, 18 November 2010

Conference Report: “Ethics in International Arbitration: The Role and Conduct of Arbitrator and... This seminar was organised by the Arbit-Italian Forum for Arbitration and ADR, a recently constituted association of young Italian practitioners promoting arbitration culture in Italy and abroad. At the seminar, Constantine Partasides of Freshfields Bruckhaus Deringer spoke about the draft "Code on Ethics for Lawyers Practicing before International Arbitral Tribunals" presented by Doak Bishop and Margrete Stevens at the ICCA Conference in May 2010. Firstly, he stressed that the main reason for introducing such a code is to avoid the risks associated with competing deontologies, i.e. situations in which a lawyer may be subject to multiple and potentially conflicting codes of ethics. Next, he summarised the two main arguments against adoption of the new code: 1) the likelihood that its extreme vagueness would proliferate, rather than harmonize, ethical rules and 2) the serious difficulties of enforcement. Finally, he proposed as a tentative solution the inclusion into institutional arbitration rules of a provision imposing upon lawyers a declaration at the outset of proceedings that they accept the transnational code. Pierre-Yves Gunter of Python & Peter, Geneva dealt with ethical problems for arbitrators and stressed that they are mainly influenced by two factors: cultural differences going far beyond the traditional divide between common and civil law jurisdictions and the different role of the arbitrator with respect to a judge. As to the latter factor, he observed that for example parties can choose the arbitrator and sometimes even interview the potential arbitrator; this process raises ethical issues such as what questions the parties are allowed to ask and what documentary information the arbitrator is allowed to examine if any. Moreover, the arbitrator as opposed to a judge is subject to some "financial pressure" in his day to day activities in the sense that his overall income depends upon the number of appointments he manages to obtain and upon the size of the cases in particular the value in dispute; this leads some arbitrators to accept some "overbooking" since some of the cases will not reach the stage of the award; finally, many arbitrators sit in the committees of the arbitral institutions which appoint arbitrators or recommend names. All those elements evidence that an arbitrator is faced with a different situation than a judge and in such context ethical issues may need to be dealt with, calling for a cautious attitude. Mr Gunter also mentioned the CCBE draft "Ethical Guidelines for Lawyers Serving in Arbitration Proceedings" and stressed that not many lawyers in particular arbitration practitioners are aware of this text. Unfortunately, the drafters did not deem necessary to involve arbitration 230 29 ASA BULLETIN 1/2011 (MARCH) ARBITRATION NEWS & NOTES practitioners (save for one or two delegates who practice arbitration) or representatives of leading arbitration institutions. Recently leading arbitration practitioners and representatives of leading institutions such as the Milan Arbitration Chamber urged the drafters to consult them, so far without success. Also at the seminar, Chiara Giovannucci Orlandi provided an overview of the Milan Arbitration Chamber's approach to ethics. This institution seeks to prevent malpractice by organising training courses with a strong emphasis on ethical issues. In addition, its arbitration rules envisage the non-confirmation and removal of arbitrators who violate ethical duties specified in the 1996 deontological code. Then, with reference to the institution's recent case-law, she illustrated why, in two cases so far, the appointment of an arbitrator gave rise to ethical issues. Lastly, Julian D M Lew QC of 20 Essex Street observed that the relationship between the arbitrator and counsel shall be governed by mutual respect. Drawing from his long experience as both counsel and arbitrator, he outlined a number of practical arbitration cases involving ethical. He focused in particular on challenges of arbitrators which are increasingly used as a dilatory tactic and on arbitrators becoming aware during evidence gathering that a party has committed a criminal offence. Comments and questions from the audience mainly concentrated on the draft Code on Ethics: issues of feasibility, its possible legal form, and the opportunity of involving a larger number of stakeholders in its drafting. DANIELE DE CAROLIS 29 ASA BULLETIN 1/2011 (MARCH) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png ASA Bulletin Kluwer Law International

Conference Report: “Ethics in International Arbitration: The Role and Conduct of Arbitrator and Counsel” – Milan, 18 November 2010

ASA Bulletin , Volume 29 (1) – Mar 1, 2011

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Kluwer Law International
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Copyright © Kluwer Law International
ISSN
1010-9153
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Abstract

This seminar was organised by the Arbit-Italian Forum for Arbitration and ADR, a recently constituted association of young Italian practitioners promoting arbitration culture in Italy and abroad. At the seminar, Constantine Partasides of Freshfields Bruckhaus Deringer spoke about the draft "Code on Ethics for Lawyers Practicing before International Arbitral Tribunals" presented by Doak Bishop and Margrete Stevens at the ICCA Conference in May 2010. Firstly, he stressed that the main reason for introducing such a code is to avoid the risks associated with competing deontologies, i.e. situations in which a lawyer may be subject to multiple and potentially conflicting codes of ethics. Next, he summarised the two main arguments against adoption of the new code: 1) the likelihood that its extreme vagueness would proliferate, rather than harmonize, ethical rules and 2) the serious difficulties of enforcement. Finally, he proposed as a tentative solution the inclusion into institutional arbitration rules of a provision imposing upon lawyers a declaration at the outset of proceedings that they accept the transnational code. Pierre-Yves Gunter of Python & Peter, Geneva dealt with ethical problems for arbitrators and stressed that they are mainly influenced by two factors: cultural differences going far beyond the traditional divide between common and civil law jurisdictions and the different role of the arbitrator with respect to a judge. As to the latter factor, he observed that for example parties can choose the arbitrator and sometimes even interview the potential arbitrator; this process raises ethical issues such as what questions the parties are allowed to ask and what documentary information the arbitrator is allowed to examine if any. Moreover, the arbitrator as opposed to a judge is subject to some "financial pressure" in his day to day activities in the sense that his overall income depends upon the number of appointments he manages to obtain and upon the size of the cases in particular the value in dispute; this leads some arbitrators to accept some "overbooking" since some of the cases will not reach the stage of the award; finally, many arbitrators sit in the committees of the arbitral institutions which appoint arbitrators or recommend names. All those elements evidence that an arbitrator is faced with a different situation than a judge and in such context ethical issues may need to be dealt with, calling for a cautious attitude. Mr Gunter also mentioned the CCBE draft "Ethical Guidelines for Lawyers Serving in Arbitration Proceedings" and stressed that not many lawyers in particular arbitration practitioners are aware of this text. Unfortunately, the drafters did not deem necessary to involve arbitration 230 29 ASA BULLETIN 1/2011 (MARCH) ARBITRATION NEWS & NOTES practitioners (save for one or two delegates who practice arbitration) or representatives of leading arbitration institutions. Recently leading arbitration practitioners and representatives of leading institutions such as the Milan Arbitration Chamber urged the drafters to consult them, so far without success. Also at the seminar, Chiara Giovannucci Orlandi provided an overview of the Milan Arbitration Chamber's approach to ethics. This institution seeks to prevent malpractice by organising training courses with a strong emphasis on ethical issues. In addition, its arbitration rules envisage the non-confirmation and removal of arbitrators who violate ethical duties specified in the 1996 deontological code. Then, with reference to the institution's recent case-law, she illustrated why, in two cases so far, the appointment of an arbitrator gave rise to ethical issues. Lastly, Julian D M Lew QC of 20 Essex Street observed that the relationship between the arbitrator and counsel shall be governed by mutual respect. Drawing from his long experience as both counsel and arbitrator, he outlined a number of practical arbitration cases involving ethical. He focused in particular on challenges of arbitrators which are increasingly used as a dilatory tactic and on arbitrators becoming aware during evidence gathering that a party has committed a criminal offence. Comments and questions from the audience mainly concentrated on the draft Code on Ethics: issues of feasibility, its possible legal form, and the opportunity of involving a larger number of stakeholders in its drafting. DANIELE DE CAROLIS 29 ASA BULLETIN 1/2011 (MARCH)

Journal

ASA BulletinKluwer Law International

Published: Mar 1, 2011

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