International Arbitration has made great advances in the past several decades in becoming the mechanism of choice to resolve international disputes. Give me any court system in the world and nothing approaches the dynamic pragmatism of international arbitration. The relative costs, speed and predictability of this dispute resolution regime are unbeatable.
While international arbitration does it best to bridge the cultural, legal and even ideological gap among parties from opposite sides of the globe, there’s still a lot of work to be done to address conflicting national ethical rules.
At least that’s the argument raised in a compelling book chapter I just read, The Ethics of Advocacy in International Arbitration by Catherine A. Rogers, Professor of Law at Penn State University, & Università Commerciale Luigi Bocconi, Milan, Italy.
The chapter is from the book, The Art of Advocacy in International Arbitration. Although I haven’t not read the book, I do plan on getting my hands on it.
As Rogers characterizes it, international arbitration is the wild west of ethics because it lacks a uniform set of ethical rules. Attorneys in a cross-border arbitration are each following different and often-conflicting national ethical rules.
In jurisdictions like the United States, for example, there is a tradition of opposing parties exchanging of documents before trial. Under this tradition, attorneys have an ethical obligation to search for and disclose non-privileged documents in response to authorized requests. In other jurisdictions, where there is no tradition of document exchange, and hence no related ethical obligations, many counsel regard it as a betrayal of their obligation of loyalty to disclose documents that are damaging to their client.
Another example—consider the French doctrine of “sous la foi du Palais” that may require that an attorney maintain as confidential as against his own client a communication conveyed by opposing counsel, even if such communication contains a proposed settlement that U.S. ethical rules mandate that the attorney disclose to the client.
As Rogers correctly points out “lawyers engaged in international arbitration have little or no guidance about how these rules fit together, and even less guidance about how to manage such conflicts when appearing before international arbitration tribunals.”
Rogers advances the idea that international arbitration regime must develop a uniform set of ethical rules. She makes a compelling argument:
Rogers concludes by stating that there are several primary reasons why a new ethics regime is needed in international arbitration: 1) attorneys need more guidance about what constitutes proper conduct; and 2) parties need to understand better how to plan their legal representation and related case strategy.
I think Rogers is on the right track but it’s going to take unprecedented cooperation of all relevant actors—parties, counsel, arbitrators, arbitral institutions, and national and international regulatory authorities—to not only develop the content of the new ethical rules, but to implement them and ensure their meaningful enforcement.
What do you think?