By Okpi Bernard Adaafu Esq
![image](/2020/10/lawreport.jpg")
OBJECTIVE
![image](/2021/01/payne-alex.jpg")
This paper will examine the rules of ethics applicable to
Counsel in International Commercial Arbitration, the dilemma of
applying divergence rules of ethics and provide recommendations on
the way forward.
INTRODUCTION
Regulating Counsel ethics has been a burning issue in the realm
of international arbitration. Primarily, lawyers are regulated by
the rules of ethics at the place they are licensed to practice. A
seat of arbitration may be different from the jurisdiction where a
lawyer is licensed to practice. It is difficulty therefore to
determine which law should regulate lawyers’ conduct in
arbitration; should it be the domestic regulation or the ethics
obtainable at the seat of arbitration, or institutional rules or a
new uniform rules. Often times, parties in arbitration are
represented by non-lawyers, the question then is should the rules
of ethics for lawyers apply to non-lawyers? These have led to the
application of conflicting rules and norms in international
arbitration. This paper will address these questions.
LAWYERS ETHICS IN INTERNATIONAL COMMERCIAL
ARBITRATION
In the words of Mosk, “Parties in arbitrations can represent
themselves or can be represented by lawyers, legally trained
representatives or non-lawyers, such as corporate officers and
technical advisors. Generally, except for small or specialized
commercial arbitrations, parties in international arbitrations have
legal representation. Some national laws require parties in
international arbitration to establish that counsel is authorized
to act on their behalf. This was the practice of the Iran-United
States Claims Tribunal”.
As it can be seen above both lawyers and non-lawyers are
eligible to represent parties in an arbitration proceedings. Just
like in national courts where conducts of lawyers are regulated
with respect to the mode of tendering evidence, courtesy and
respect to court, cross-examination etc, it is pertinent also to
regulate the conduct of lawyers in arbitration proceedings. The
violation of the code of ethics by a lawyer in a court attracts
sanction but the soft rules issued by arbitrators during
preliminary stage lack ability to sanction disobedience.
Mosk noted that;
“Legal representation in international arbitration can
involve the same ethical issues that arise in legal representation
in other matters; for example, conflicts of interest, incompetence,
lack candor, dishonesty, communications with opposing parties and
arbitrators, improper compensation arrangements, and privileges.
Different regimes have a variety of rules or laws applicable to
these issues. The extent to which choice of law principles can
govern professional conduct issues is not easily
determined”.
It is important to regulate lawyers conduct in international
arbitration but a code of ethics for counsel will have little
impact on the segment of international arbitrations in which there
is no counsel or the party representatives are non-lawyers.
Industry arbitrations, such as commodities arbitrations, conduct
their proceedings without counsel and governments are not always
represented by attorneys
WHAT IS THE POSSIBILITY OF APPLYING UNIFORM RULES AND
NORMS IN INTERNATIONAL ARBITRATION?
The dilemma of the application of divergence rules and norms in
international arbitration was captured by Mosk when he stated
that;
“Ethical norms do not exist as to many areas of behavior.
There are some basic rules accepted almost everywhere. Examples
include courtesy and respect for the tribunal members and opposing
counsel, honesty and integrity, and the avoidance of unnecessary
conflicts. Commonly, ethical precepts vary greatly from state to
state. A uniform code may diverge from the standard of professional
ethics in the country where the international arbitration is
located, and the standard of professional ethics in the
jurisdiction in which lawyers are licensed. Even within a state,
codes of ethics are not easily administered. Within the United
States, state codes may vary among themselves and with the American
Bar Association code of ethics”.
As noted above it not is not enough to formulate uniform rules
of ethics, a coordinated effort is needed to create an institution
to enforce the rules. What is the essence of formulating rules
without prescribing sanctions and taking further steps to create
enforcement agency? Any rules of ethics for party representation
without definite sanction is nothing but soft rules that is only
persuasive.
According to Professor Garry Born;
“…when each state applies its own disciplinary rules,
counsel may be unfairly subject to different standards in the same
proceeding. But to relieve a lawyer of ethical obligations by the
standards of the organization under which the lawyer is licensed to
practice also is not workable. Relying on the rules in place at the
seat of arbitration is not satisfactory; counsel generally are not
familiar with the rules of conduct where the arbitration takes
place…. The best resolution of this subject would be through the
development of uniform international rules of professional conduct,
applicable to counsel in international arbitral
proceedings”.
The above view supports the uniform rules and norms set out as
guidelines for party representation in international arbitration by
the International Bar Association (hereinafter referred to as
IBA).
The preamble to the IBA Guidelines on party representation
captured the difficulty faced by counsel subject to different rules
of ethics in international arbitration. The preamble stated
thus;
“…The mandate of the Task Force was to focus on issues of
counsel conduct and party representation in international
arbitration that are subject to, or informed by, diverse and
potentially conflicting rules and norms. As an initial inquiry, the
Task Force undertook to determine whether such differing norms and
practices may undermine the fundamental fairness and integrity of
international arbitral proceedings and whether international
guidelines on party representation in international arbitration may
assist parties, counsel and arbitrators…. Unlike in domestic
judicial settings, in which counsel are familiar with, and subject,
to a single set of professional conduct rules, party
representatives in international arbitration may be subject to
diverse and potentially conflicting bodies of domestic rules and
norms…”
RECOMMENDATIONS
The possible recommendations to the dilemma of applying
divergence rules of ethics for counsel in international
arbitrations are;
- Formulation of a uniform ethical code. This means involving an
independent third party to formulate a uniform code of ethics for
counsel. The most fruitful attempt thus far is the IBA Guidelines
on Party Representation in International Arbitration or - Institution-specific codes of conduct. This entails arbitral
institutions themselves coming up with codes of conduct.
CONCLUSION
From the foregoing is obvious that, the proceeding in
international arbitration is similar to that of national court’s
proceeding and it should be regulated in the same way national
courts are regulated. However, the challenge is based on the fact
that domestic rules and norms regulates counsel behaviour and the
seat of arbitration may be different from the jurisdiction where
counsel practice. The rules of ethics that apply to counsel varies
from one jurisdiction to another thus making it difficult for
counsel to abide by different set of rules. It is therefore
important to formulate uniform rules to arrest the ugly situation.
Even though some writers opined that “the difficulty with such a
regulatory framework is that any guidelines issued would “sit on
top of” national ethical standards that apply to counsel. In that
sense a uniform ethical code adds to, rather than cuts through, the
morass of rules that counsel faces”
By Okpi Bernard Adaafu Esq, LL.B, B.L, LL.M (in
view). Twitter: @OkpiBernard ,
Email: okpibernardadaafu@gmail
References
- See the Preamble to “IBA Guidelines on Party Representation
in International Arbitration” Adopted by a resolution of the IBA
Council 25 May 2013 International Bar Association < https://www.ibanet.org[1] > accessed on
4th April, 2021. - Mosk Richard. M. “Attorney Ethics in International
Arbitration” (2019) <https://www.bjil.typepad.com[2]> accessed
2nd April 7, 2021. - Mosk Richard. M. “Attorney Ethics in International
Arbitration” (2019) <https://www.bjil.typepad.com[3]> quoting R. Mosk
& T Ginsburg “ Evidentiary Privileges in International
Arbitration” (INT’L & COMP. L.Q. publication 2001) - Mosk Richard. M. “Attorney Ethics in International
Arbitration” (2019) <https://www.bjil.typepad.com[4]> quoting
Gary Born “International Commercial Arbitration” ((3d .
2009).
By Okpi Bernard Adaafu Esq
OBJECTIVE
This paper will examine the rules of ethics applicable to
Counsel in International Commercial Arbitration, the dilemma of
applying divergence rules of ethics and provide recommendations on
the way forward.
INTRODUCTION
Regulating Counsel ethics has been a burning issue in the realm
of international arbitration. Primarily, lawyers are regulated by
the rules of ethics at the place they are licensed to practice. A
seat of arbitration may be different from the jurisdiction where a
lawyer is licensed to practice. It is difficulty therefore to
determine which law should regulate lawyers’ conduct in
arbitration; should it be the domestic regulation or the ethics
obtainable at the seat of arbitration, or institutional rules or a
new uniform rules. Often times, parties in arbitration are
represented by non-lawyers, the question then is should the rules
of ethics for lawyers apply to non-lawyers? These have led to the
application of conflicting rules and norms in international
arbitration. This paper will address these questions.
LAWYERS ETHICS IN INTERNATIONAL COMMERCIAL
ARBITRATION
In the words of Mosk, “Parties in arbitrations can represent
themselves or can be represented by lawyers, legally trained
representatives or non-lawyers, such as corporate officers and
technical advisors. Generally, except for small or specialized
commercial arbitrations, parties in international arbitrations have
legal representation. Some national laws require parties in
international arbitration to establish that counsel is authorized
to act on their behalf. This was the practice of the Iran-United
States Claims Tribunal”.
As it can be seen above both lawyers and non-lawyers are
eligible to represent parties in an arbitration proceedings. Just
like in national courts where conducts of lawyers are regulated
with respect to the mode of tendering evidence, courtesy and
respect to court, cross-examination etc, it is pertinent also to
regulate the conduct of lawyers in arbitration proceedings. The
violation of the code of ethics by a lawyer in a court attracts
sanction but the soft rules issued by arbitrators during
preliminary stage lack ability to sanction disobedience.
Mosk noted that;
“Legal representation in international arbitration can
involve the same ethical issues that arise in legal representation
in other matters; for example, conflicts of interest, incompetence,
lack candor, dishonesty, communications with opposing parties and
arbitrators, improper compensation arrangements, and privileges.
Different regimes have a variety of rules or laws applicable to
these issues. The extent to which choice of law principles can
govern professional conduct issues is not easily
determined”.
It is important to regulate lawyers conduct in international
arbitration but a code of ethics for counsel will have little
impact on the segment of international arbitrations in which there
is no counsel or the party representatives are non-lawyers.
Industry arbitrations, such as commodities arbitrations, conduct
their proceedings without counsel and governments are not always
represented by attorneys
WHAT IS THE POSSIBILITY OF APPLYING UNIFORM RULES AND
NORMS IN INTERNATIONAL ARBITRATION?
The dilemma of the application of divergence rules and norms in
international arbitration was captured by Mosk when he stated
that;
“Ethical norms do not exist as to many areas of behavior.
There are some basic rules accepted almost everywhere. Examples
include courtesy and respect for the tribunal members and opposing
counsel, honesty and integrity, and the avoidance of unnecessary
conflicts. Commonly, ethical precepts vary greatly from state to
state. A uniform code may diverge from the standard of professional
ethics in the country where the international arbitration is
located, and the standard of professional ethics in the
jurisdiction in which lawyers are licensed. Even within a state,
codes of ethics are not easily administered. Within the United
States, state codes may vary among themselves and with the American
Bar Association code of ethics”.
As noted above it not is not enough to formulate uniform rules
of ethics, a coordinated effort is needed to create an institution
to enforce the rules. What is the essence of formulating rules
without prescribing sanctions and taking further steps to create
enforcement agency? Any rules of ethics for party representation
without definite sanction is nothing but soft rules that is only
persuasive.
According to Professor Garry Born;
“…when each state applies its own disciplinary rules,
counsel may be unfairly subject to different standards in the same
proceeding. But to relieve a lawyer of ethical obligations by the
standards of the organization under which the lawyer is licensed to
practice also is not workable. Relying on the rules in place at the
seat of arbitration is not satisfactory; counsel generally are not
familiar with the rules of conduct where the arbitration takes
place…. The best resolution of this subject would be through the
development of uniform international rules of professional conduct,
applicable to counsel in international arbitral
proceedings”.
The above view supports the uniform rules and norms set out as
guidelines for party representation in international arbitration by
the International Bar Association (hereinafter referred to as
IBA).
The preamble to the IBA Guidelines on party representation
captured the difficulty faced by counsel subject to different rules
of ethics in international arbitration. The preamble stated
thus;
“…The mandate of the Task Force was to focus on issues of
counsel conduct and party representation in international
arbitration that are subject to, or informed by, diverse and
potentially conflicting rules and norms. As an initial inquiry, the
Task Force undertook to determine whether such differing norms and
practices may undermine the fundamental fairness and integrity of
international arbitral proceedings and whether international
guidelines on party representation in international arbitration may
assist parties, counsel and arbitrators…. Unlike in domestic
judicial settings, in which counsel are familiar with, and subject,
to a single set of professional conduct rules, party
representatives in international arbitration may be subject to
diverse and potentially conflicting bodies of domestic rules and
norms…”
RECOMMENDATIONS
The possible recommendations to the dilemma of applying
divergence rules of ethics for counsel in international
arbitrations are;
- Formulation of a uniform ethical code. This means involving an
independent third party to formulate a uniform code of ethics for
counsel. The most fruitful attempt thus far is the IBA Guidelines
on Party Representation in International Arbitration or - Institution-specific codes of conduct. This entails arbitral
institutions themselves coming up with codes of conduct.
CONCLUSION
From the foregoing is obvious that, the proceeding in
international arbitration is similar to that of national court’s
proceeding and it should be regulated in the same way national
courts are regulated. However, the challenge is based on the fact
that domestic rules and norms regulates counsel behaviour and the
seat of arbitration may be different from the jurisdiction where
counsel practice. The rules of ethics that apply to counsel varies
from one jurisdiction to another thus making it difficult for
counsel to abide by different set of rules. It is therefore
important to formulate uniform rules to arrest the ugly situation.
Even though some writers opined that “the difficulty with such a
regulatory framework is that any guidelines issued would “sit on
top of” national ethical standards that apply to counsel. In that
sense a uniform ethical code adds to, rather than cuts through, the
morass of rules that counsel faces”
By Okpi Bernard Adaafu Esq, LL.B, B.L, LL.M (in
view). Twitter: @OkpiBernard ,
Email: okpibernardadaafu@gmail
References
- See the Preamble to “IBA Guidelines on Party Representation
in International Arbitration” Adopted by a resolution of the IBA
Council 25 May 2013 International Bar Association < https://www.ibanet.org[1] > accessed on
4th April, 2021. - Mosk Richard. M. “Attorney Ethics in International
Arbitration” (2019) <https://www.bjil.typepad.com[2]> accessed
2nd April 7, 2021. - Mosk Richard. M. “Attorney Ethics in International
Arbitration” (2019) <https://www.bjil.typepad.com[3]> quoting R. Mosk
& T Ginsburg “ Evidentiary Privileges in International
Arbitration” (INT’L & COMP. L.Q. publication 2001) - Mosk Richard. M. “Attorney Ethics in International
Arbitration” (2019) <https://www.bjil.typepad.com[4]> quoting
Gary Born “International Commercial Arbitration” ((3d .
2009).