Ethics in International Arbitration (Book) - Rogers

ETHICS IN INTERNATIONAL ARBITRATION
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ETHICS IN
INTERNATIONAL
ARBITRATION
Catherine A. Rogers
Professor of Law and Paul & Marjorie Price Faculty Scholar
Penn State Law
Professor of Ethics, Regulation & the Rule of Law
Co-Director of the Institute for Ethics & Regulation
Queen Mary, University of London
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AUTHOR BIOGRAPHY
Catherine A. Rogers is a Professor of Law and the Paul & Marjorie Price Faculty Scholar at
Penn State Law, and the Professor of Ethics, Regulation and the Rule of Law at Queen Mary,
University of London, where she is Co-Director, together with Stavros Brekoulakis, of the
Institute for Ethics and Regulation. Her scholarship focuses on issues of global legal ethics
and international adjudication, and she has taught, lectured, and served as an expert on
these topics for various institutions around the world. Professor Rogers is a Reporter for the
American Law Institute’s Restatement of the U.S. Law (Third) of International Commercial
Arbitration, and a Member of the Court of Arbitration for the Jerusalem Arbitration Center,
appointed by the ICC Palestine. Together with William W. ‘Rusty’ Park, she co-chairs the
ICCA–Queen Mary Task Force on Third-Party Funding in International Arbitration.
Professor Rogers is also the Founder and Director of Arbitrator Intelligence, an interactive
online resource to increase accountability and equal access to information in the arbitrator
selection process.
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CONTENTS
Table of Cases xv
Introduction 1
A. Thesis and themes 1
B. Terminology 9
C. Methodology 12
D. Overview of the argument 13
E. Conclusion 14
I MAPPING THE TERRAIN
1. From an Invisible College to an Ethical No-Man’s Land 17

A. The early modern international arbitration system 1.12
B. Modern international arbitration 1.24
C. Globalization of the legal profession 1.43
D. Regulation of transnational law practice 1.54
E. Regulation of attorneys in international arbitration 1.73
F. Conclusion 1.105
2. Arbitrators, Barbers, and Taxidermists 57

A. Arbitrator selection and the marketplace for arbitrator services 2.11
B. Sources of international arbitrators’ ethical duties 2.49
C. International arbitrators’ substantive ethical obligations 2.101
D. Conclusion 2.130
3. Attorneys, Barbarians, and Guerrillas 99

A. Counsel ethics in international arbitration proceedings 3.10
B. National differences in ethical rules 3.30
C. Internationalization and enforcement 3.84
D. Conclusion 3.99
4. Experts, Partisans, and Hired Guns 139

A. Comparative differences in expert witnessing 4.08
B. Expert witnesses in international arbitration 4.47
C. Procedural reforms and the panda’s thumb 4.82
D. Conclusion 4.104
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Contents
5. Gamblers, Loan Sharks, and Third-Party Funders 177

A. Definitions and mechanics 5.18
B. Funders and other participants in international arbitration 5.36
C. Regulation of third-party funding in international arbitration 5.107
D. Conclusion 5.132
II STAKING OUT THEORETICAL BOUNDARIES

AND BUILDING THE REGIME
6. Chanticleer, the Fox, and Self-Regulation 221

A. Defining self-regulation 6.10
B. Self-regulation in international arbitration 6.44
C. Conclusion 6.166
7. Ariadne’s Thread and the Functional Thesis 274

A. A theory of professional ethics 7.07
B. The Functional Thesis as a prescriptive tool 7.66
C. Conclusion 7.100
8. Herodotian Myths and the Impartiality of Arbitrators 311

A. The myth of the ‘non-humanness of judges’ 8.05
B. The new role and new ethics of investment arbitrators 8.14
C. Impartiality obligations of party-appointed arbitrators 8.37
D. Reforming and refining the selection process 8.77
E. Conclusion 8.108
9. Duck-Rabbits, a Panel of Monkeys, and the Status of

International Arbitrators 343
A. Competing models of international arbitration 9.03
B. Squinting hard to see arbitrators’ duality 9.18
C. Conclusion 9.68
10. Castles in the Air and the Future of Ethics in

International Arbitration 365
A. The future of international arbitration 10.03
B. The future of ethics in international arbitration 10.10
C. The future of ethical self-regulation 10.29
Index 373
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Part I
MAPPING THE TERRAIN
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1
FROM AN INVISIBLE COLLEGE
TO AN ETHICAL NO -MAN’S LAND
[T]he professional community of international lawyers . . .

though dispersed throughout the world
and engaged in diverse occupations,
constitutes a kind of invisible college
dedicated to a common intellectual enterprise.
Oscar Schachter
No Man’s Land is an eerie sight
At early dawn in the pale gray light.
Never a house and never a hedge
In No Man’s Land from edge to edge.
James H. Knight-Adkin*
International arbitration was founded by members of what Oscar Schachter called the 1.01
‘Invisible College of International Lawyers’.1 Schachter argued that, even though interna-
tional lawyers were ostensibly performing ordinary legal services on behalf of individual
clients, they were effectively engaged in a legislative function, contributing to creation of a
global legal order.2 Although Schachter did not single out the founders of modern interna-
tional arbitration specifically, he was undoubtedly describing them.
Like other members of Schachter’s Invisible College, those who made international arbitra- 1.02
tion what it is today shared a common intellectual enterprise. They also shared a professional
ethos that was preoccupied with transcendent principles of justice.3 As Schachter theorized,
they aimed at constructing a global legal order. Through their advocacy and service as arbi-
trators, their scholarship, their drafting of essential treaties,4 and their lobbying of national
governments, they established international arbitration as a feasible and reliable dispute
* No Man’s Land, in George Herbert Clarke (ed.), A Treasury of War Poetry (1917).
1
Oscar Schachter, ‘The Invisible College of International Lawyers’, 72 Nw. U. L. Rev. 217 (1977).
2 See Schachter, ‘The Invisible College of International Lawyers’, 223–6.
3 See Schachter, ‘The Invisible College of International Lawyers’, 225–6. Yves Dezalay and Bryant Garth
similarly identified how attorneys and arbitrators in international arbitration operate as ‘moral entrepreneurs.’
Yves Dezalay and Bryant G. Garth, ‘Merchants of Law as Moral Entrepreneurs: Constructing International
Justice from the Competition for Transnational Business Disputes,’ 29 Law & Soc’y Rev. 27, 35 (1995).
4
Pieter Sanders may be considered the dean of the Invisible College’s school of international arbitration.
Famously, on one weekend in May 1958, Sanders typed on a small portable typewriter at his father-in-law’s
house what would later be ratified as the United Nations Conference on International Commercial Arbitration.
See Pieter Sanders, ‘The History of the New York Convention’, in Albert Jan van den Berg (ed.), Improving
the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention (ICCA
Congress Series No. 9, 1999) 11–14.
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From an Invisible College to an Ethical No-Man’s Land
resolution mechanism. They shaped its legal framework and the contours of its procedures
that remain today.
1.03 In those early stages, international arbitration practitioners and arbitrators had shared
understandings about various issues, including tacit understandings about what constituted
proper ethical conduct in arbitral proceedings. Several recent trends, both within interna-
tional arbitration and more generally as part of globalization of the legal profession, have
broken down these shared understandings. The result is that today, instead of being
constituents of an Invisible College, those participating in international arbitration dwell in
an ethical no-man’s land.
1.04 A ‘no-man’s land’ is a space between the formally occupied territories of two warring sover-
eigns.5 In the absence of a governing sovereign, booby traps, land mines, snipers, and tangled
barbed wire determine how and when soldiers manoeuvre in that space. Attacks from both
sides are constant. Most importantly, the uncertain political status of a no-man’s land means
that it is unclear what rules or laws apply because the warring sovereigns each claim legal
dominion. Perhaps this last feature best captures why makes professional conduct in inter-
national arbitration an ethical no-man’s land.
1.05 The ethical abyss is most evident with respect to counsel. Even if their conduct is central to
arbitral proceedings, no one seems to know what, if any, ethical rules apply to attorneys in
international arbitral proceedings. Consider, for example, the range of possibly applicable
ethical rules that might apply to a German attorney, who has an LL.M. from a US law school
and is a member of the New York Bar, and is representing a Japanese client in an arbitration
seated in Switzerland that is governed by French substantive law against an Austrian coun-
terparty. If the reader is uncertain about which ethical rules apply, arbitration experts do not
fare much better.
1.06 A recent survey by the International Bar Association (IBA) Task Force on Counsel Conduct
in Arbitration confirmed the general confusion about what rules would apply. Of those
surveyed, 63% reported that they believed that they were subject to their home jurisdic-
tion’s rules; 27% were uncertain, but followed their home rules in an abundance of caution.
Meanwhile, 10% either had no opinion or did not believe they were subject to their home
jurisdiction’s rules.6 Approximately 56% of respondents believed that their conduct in
international arbitration may also be subject to ethical rules other than those of their home
jurisdiction. Finally, a total of 87% of respondents indicated that they are either never or
only sometimes sure what ethical norms govern the conduct of their opposing counsel.7
5 The earlier etymology of the term ‘no-man’s land’ is a little more gruesome. It was first used for a wasteland
outside London where the rotting bodies of hanged, impaled, and beheaded criminals were left as a warning to
potential lawbreakers. G.J. Aungier (ed.), Chroniques de London: depuis l’an 44 Hen. III. jusqu’à l’an 17 Edw.
III. (Camden Soc, 1844) 56. This area came to be known as no-man’s land since no one would seek to claim this
land for ownership. Later it obtained its modern connotation.
6 IBA Task Force on Counsel Conduct in Arbitration Survey (Sept. 2010). See also Günther J. Horvath,
‘Guerrilla Tactics in Arbitration, an Ethical Battle: Is There Need for a Universal Code of Ethics?’ in C. Klausegger
et al. (eds.), Austrian Yearbook on International Arbitration (Manz’sche Verlags- und Universitätsbuchhandlung,
2011) 297 (‘Attorneys are bound, if at all, by the code of ethics of the home State where they are licensed.’).
Similarly, when it was suggested to a conference of international arbitration practitioners ‘that an advocate
in a private commercial arbitration was not bound by the same duties owed by counsel to a court, the imme-
diate (near unanimous) response was shock and indignation’. Peter C. Thomas, ‘Disqualifying Lawyers in
Arbitrations: Do the Arbitrators Play Any Proper Role?’ 1 Am. Rev. Int’l Arb. 562, 563 (1990).
7
Results of study on file with author.
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As with a real no-man’s land, instead of liberating participants from ethical regulation, these 1.07
ambiguities foster conflict and confusion, create traps for the unwary, and provide oppor-
tunities for mischief by the unscrupulous. It is perhaps no surprise, therefore, that there
are numerous reports of increased incidents of so-called ‘guerrilla tactics’ in international
arbitral proceedings. Although there is no universal definition, ‘guerrilla tactics’ generally
refer to intentional ethical abuses that are intended to delay or sabotage arbitral proceed-
ings in order to gain an unfair advantage.8 In a recent survey, 68% of respondents reported
having themselves experienced guerrilla tactics.9 Notably, the authors of the survey did not
define ‘guerrilla tactics’ because—with no consensus about what constitutes proper ethical
conduct—one attorney or party’s guerrilla tactic is another party or attorney’s legitimate
strategy or even procedural right.
With international arbitrators, the problem is not so much about what rules or standards 1.08
apply, or about rampant misbehaviour. The international arbitration community has done
a commendable job of developing increasingly clear and transparent standards, and increas-
ingly effective procedures for enforcing them. Nevertheless, important questions remain in
certain areas, such as with respect to the nature of impartiality obligations of party-appointed
arbitrators, the nature of arbitrators’ vocation as service providers (or something more), the
role of arbitral institutions in monitoring arbitrators, the effect of so-called ‘issue conflicts’,
and perceived inequities and lack of transparency in the selection process.
With other participants, such as experts and third-party funders, issues about their profes- 1.09
sional conduct are largely uncharted territory. The questions are new and, until now, largely
unexplored.10 Anecdotal reports, however, suggest that ambiguities about what standards or
rules apply, and hence what constitutes appropriate conduct, are an increasingly important
concern.
The overall thesis of the book is that professional regulation of these various participants 1.10
must be endogenous, not exogenous, to international arbitration. This is an express call
to self-regulation. While the term ‘self-regulation’ is new, the dynamic of self-regulation is
well worn into the very fabric of international arbitration. As explored more specifically in
Chapter 6, international arbitration operates largely on assumptions of its ability and need to
self-regulate. Its processes exist largely independent of national legal systems, unregimented
by national procedural rules, and free from the confines of national legal cultures. In this
respect, international arbitration has always been, and continues to be, largely self-regulat-
ing, including with respect to the conduct of participants. To date, only arbitrators have
been effectively subject to self-regulation. This book proposes that international arbitration
extend the tradition of self-regulation expressly and intentionally to the ethical conduct
of all its participants. Self-regulation will render their professional obligations more clear,
8 For various definitions of ‘guerrilla tactics’, see Stephan Wilske, ‘Arbitration Guerrillas at the Gate: Preserving
the Civility of Arbitral Proceedings when the Going Gets (Extremely) Tough’, in Klausegger et al. (eds.), Austrian
Yearbook on International Arbitration, 315–19; Horvath, ‘Guerrilla Tactics in Arbitration, an Ethical Battle: Is There
Need for a Universal Code of Ethics?’ in Klausegger et al. (eds.), Austrian Yearbook on International Arbitration,
297; Abba Kolo, ‘Witness Intimidation, Tampering and Other Related Abuses of Process in Investment Arbitration:
Possible Remedies Available to the Arbitral Tribunal’, 26 Arb. Int’l 43, 46–7 (2010).
9 See Edna Sussman and Solomon Ebere, ‘All’s Fair in Love and War—Or Is It? Reflections on Ethical
Standards for Counsel in International Arbitration’, 22 Am. Rev. Int’l Arb. 611, 612 (2011).
10
See Chapters 4 and 5.
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discernible, and predictable. The result will be increased efficiency and increased confidence
in the legitimacy of arbitral processes.
1.11 As background to this larger project, this first chapter contextualizes the current ethical
quandaries within the larger history of international arbitration and regulation of the glo-
balized legal profession more generally. Section A provides a brief overview of the early
modern history of international arbitration. With that background, Section B examines the
trends that have led to a breakdown in the informal social controls that had, until recently,
adequately substituted for more formal ethical regulation. Section C contextualizes these
international arbitration developments in the larger framework of professional regulation of
lawyers, analysing how ethical regulation has generally failed to keep pace with the realities
of a modern, globalized law practice. Section D weaves these strands back together to assess
regulation of attorneys in international arbitration, and concludes with a more detailed
preview of the book’s proposal for self-regulation.
A. The early modern international arbitration system

1.12 Although the origins of international arbitration date back to antiquity, the origins of mod-
ern international arbitration can be traced to the 1920s.11 This was the heyday of Schachter’s
Invisible College of international lawyers.12 At that time, the very notion of internationalism
was still teetering over its first steps. The weak, and eventually doomed, League of Nations
limped along without US participation. The more robust United Nations would only come
to be after the gestation of another World War. In this context of nascent international-
ism, the notion of effective international adjudication still seemed to be mostly an abstract
aspiration.13
1.13 During this earlier era, international commercial arbitration was not the mature, intricate
mechanism we find today. The foundations for the modern system were, however, being
laid. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention
on the Execution of Foreign Arbitral Awards of 1927 were more effective for international
arbitration than the League of Nations was for global governance, and established the frame-
work for modern international arbitration. Despite their achievements, under the Geneva
Protocol and the Geneva Convention, arbitration agreements were still routinely voided14
11 Johnny Veeder, a leading voice in the call for ethical innovation in international arbitration, argues per-
suasively that an important ‘stepping stone’ for modern arbitration is the much earlier Code by Lord Bramwell,
which forms ‘the basis of English statutory law on arbitration’. V.V. Veeder, ‘Two Arbitral Butterflies: Bramwell
and David’, in Martin Hunter, Arthur Marriott, and V.V. Veeder (eds.), The Internationalisation of International
Arbitration: The LCIA Centenary Conference (Graham & Trotman/Martinus Nijhoff, 1995) 13–15. Closer
to the 1920s, in 1917 the Swedish Chamber of Commerce founded the Committee for the Settelement of
Disputes in Commerce, Industry and Shipping. Perhaps more importantly, the Court of Arbitration of the
International Chamber of Commerce was founded in 1923 and ‘played a major role in the promulgation of
the Geneva treaties and of the New York Convention’. Alan Redfern and Martin Hunter, Law and Practice of
International Commercial Arbitration (4th edn., 2004) 5 (with Nigel Blackaby and Constantine Partasides).
12 The primary architects of the system were and are often referred to as ‘Grand Old Men’, and shared the fea-
tures and attitudes identified by Schachter. See Yves Dezalay and Bryant Garth, Dealing in Virtue: International
Arbitration and the Construction of a Transnational Legal Order (1996) 35.
13
For a detailed overview of the development of various forms of international adjudication, see Gary B.
Born, ‘A New Generation of International Tribunals’, 61 Duke L. Rev. 775 (2011).
14 Throughout the nineteenth century, courts in the United States and England frequently invoked the
doctrine of ‘ouster’ to void contractual arbitration clauses which they viewed ‘as unlawful circumventions
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The early modern international arbitration system
and arbitral awards were subject to intense judicial scrutiny, sometimes even rewriting.15
Only by virtue of domestic courts’ respect for principles of international comity were arbitral
awards enforced at all.16
Expectations about what international arbitration could accomplish were much lower than 1.14
they are today. There were relatively few cases, and their resolution was inherently less pre-
dictable in both processes and outcomes. Early international arbitration procedures were
primarily compromise-oriented, and characterized by informality and flexibility. Arbitral
decisions were revered not so much for their legal accuracy or precision as for their sense
of fairness and practical wisdom.17 Since, as noted, judicial enforcement was questionable,
awards were generally only as good as they were likely to be complied with voluntarily.18
In keeping with this approach, the arbitrator of yesteryear was often already personally 1.15
known to the parties or counsel, and typically an expert from the same industry as the par-
ties.19 He exercised a paternalistic authority20 and was expected to render a just and equitable
result. This objective sometimes meant disregarding the express terms of the contract or the
clear provisions of applicable substantive law ‘for the sake of achieving unanimity among the
arbitrators and giving something to both parties’.21
Several doctrines developed to facilitate these informal decisional processes. The doctrines of 1.16
amiable compositeur and ex aequo et bono both expressly authorize arbitrators to disregard the
strictures of so-called auxiliary rules, such as statutes of limitation, in order to reach more just
and equitable outcomes.22 Under ex aequo et bono, arbitrators are also authorized to disregard
of judicial jurisdiction and as denials of judicial justice’. Philip J. McConnaughay, ‘The Risks and Virtues
of Lawlessness: A “Second Look” at International Commercial Arbitration’, 93 Nw. U. L. Rev. 453, 462
(1999) (citing Thomas E. Carbonneau, ‘Arbitral Adjudication: A Comparative Assessment of Its Remedial
and Substantive Status in Transnational Commerce’, 19 Tex. Int’l L.J. 33, 39 n. 12 (1984)); see also Edward
Chukwuemeke Okeke, ‘Judicial Review of Foreign Arbitral Awards: Bane, Boon or Boondoggle?’ 10 N.Y. Int’l
L. Rev. 29, 32 n. 13 (1997).
15 As Tom Carbonneau explains, as a result of the ‘stigma of illegitimacy’ attached to arbitration, English law
‘allowed courts to reform or to revise completely an arbitrator’s ruling on the legal questions that arose during
the arbitration’. Thomas E. Carbonneau, ‘Arbitral Justice: The Demise of Due Process in American Law’, 70
Tul. L. Rev. 1945, 1948 (1996) (citing Michael J. Mustilland and Stewart C. Boyd, The Law and Practice of
Commercial Arbitration in England (2nd edn., 1989)).
16 See Leonard V. Quigley, ‘Accession by the United States to the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards’, 70 Yale L.J. 1049, 1049–55 (1961).
17 Yves Dezalay and Bryant Garth, ‘Fussing About the Forum: Categories and Definitions as Stakes in
Professional Competition’, 21 Law & Soc. Inquiry 285, 295 (1996).

18
One of the important assets of international arbitration is the high rate of voluntary compliance with arbi-
tral awards, which continues today. See Paul Friedland and Stavros Brekoulakis, ‘2012 International Arbitration
Survey: Currrent and Preferred Practices in the Arbitral Process’ (2 November 2013) <http://annualreview2012.
whitecase.com/International_Arbitration_Survey_2012.pdf>.
19 See W. Lawrence Craig, ‘Some Trends and Developments in the Laws and Practice of International
Commercial Arbitration’, 30 Tex. Int’l L.J. 1, 6 (1995). In this chapter, I use the masculine pronoun because it
discusses a period in which there were no female arbitrators. Today there are still few women, particularly at the top
ranks of the arbitrator profession, which has raised concerns in many corners.
20 Dezalay and Garth, ‘Merchants of Law as Moral Entrepreneurs’, 35.
21 F.A. Mann , ‘ The Aminoil Arbitration’, 54 Brit. Y.B. Int’l L . 213 , 214 ( 1983 ) . See also John Beechey,
‘International Commercial Arbitration: A Process Under Review and Change’, 55 Disp. Resol. J. 32
(2000).
22 See Christine Lecuyer-Thieffry and Patrick Thieffry, ‘Negotiating Settlement of Dispute Provisions in
International Business Contracts: Recent Developments in Arbitration and Other Processes’, 45 Bus. Law.
577 (1990).
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mandatory rules of law.23 In lieu of national substantive law, in this earlier era, parties often
selected a more pliable body of law developed out of customary trade practices and focused
on equitable results. This unwritten law of merchants24 or lex mercatoria was developed by
academics, who were also actively involved in arbitrations.25 One purpose of lex mercatoria
was to permit arbitrators to tailor their decisions to customary trade usages and a gentile
interpretation of the principles guiding international commercial transactions.26
1.17 The hallmark of lex mercatoria is its insistence on the notion that a duty of good faith informs
contract interpretation and performance.27 In applying this requirement of good faith,
arbitrators could imply terms to achieve a more equitable result. One example would be
implying a requirement that a party provide ‘ample notice’ of termination, even if the contract
included no such term.28
1.18 These soft-edged standards and procedures suited the international marketplace at the time.
In that era, there were relatively few companies, primarily concentrated in specific industries,
such as maritime, construction, and engineering, and certain commodities, such as oil,
cotton, and steel.29 Parties that were disputing one day would have to do business with each
other another day. The need to continue a business relationship made sharp business tactics
and scorched earth litigation strategies counterproductive. International businesses needed
to resolve disputes through a kinder, gentler process that would not impair their ability to do
business together in the future.30
1.19 In this earlier era, the small cluster of professionals who acted as arbitrators and counsel gener-
ally had shared understandings about what it meant to act honourably and behave ethically.31
23
It is only relatively recently that States have begun to regard their mandatory laws as reaching extrater-
ritorially. The ability of international arbitration to apply and enforce mandatory national laws, including
when their application is to events or disputes located outside the relevant nation, is a modern concern within
the international arbitration system. See Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 US 614,
638–40 (1985).
24 See generally,Thomas E. Carbonneau (ed.), Lex Mercatoria and Arbitration: A Discussion of the New Law
Merchant (rev. edn.,1998); Michael Joachim Bonell, ‘The CISG, European Contract Law and the Development
of a World Contract Law’, 56 Am.J.Comp.L. 1 (2008).
25 Dezalay and Garth, ‘Merchants of Law as Moral Entrepreneurs’, 34.
26
These principles are sometimes referred to as the ‘new lex mercatoria’, because they are a modern reincarna-
tion of the substantive law of merchants that was developed by medieval English mercantile courts. See Berthold
Goldman, ‘Lex Mercatoria’, 3 Forum Internationale 3 (November 1983) (‘Lex mercatoria is a venerable old lady
who has twice disappeared from the face of the earth and twice been resuscitated.’).
27
See Nikitas E. Hatzimihail, ‘The Many Lives—and Faces—of Lex Mercatoria: History as Genealogy
in International Business Law’, 71 Law & Contemp. Probs. 169, 174 (2008) (describing Clive Schmitthoff
and Berthold Goldman as the ‘founding fathers of the modern lex mercatoria’ and its impact on international
arbitration).
28 See Christopher R. Drahozal and Richard W. Naimark (eds.), Towards a Science of International
Arbitration: Collected Empirical Research (Kluwer Law International, 2005) 248 n. 66.

29 Paul Bairoch and Richard Kozul-Wright, Globalization Myths: Some Historical Reflections on Integration,
Industrialization and Growth in the World Economy, WIDER Conference on Transnational Corporations and
the Global Economy, September 1995, 5–18 (arguing that globalized trade primarily consisted of trade in
raw goods before the end of World War II; it was not until manufacturing predominated that globalized trade
diversified and included manufactured goods).
30
See generally, Dezalay and Garth, ‘Fussing About the Forum’, 295.
31 This is not to suggest that they were infallible or always abided by the highest ethical standards. In a widely-
criticized award, in the Petroleum Development Ltd v Sheikh of Abu Dhabi case, Lord Asquith selected English
law because Abu Dhabi is ruled by an ‘absolute, feudal monarch’, who ‘administers a purely discretionary
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The early modern international arbitration system
Just like other members of Schachter’s Invisible College, they were a self-regulating club of
gentlemen that needed no external guidance or regulatory oversight. This group’s sense of
nobility and belief in good faith extended to their expectations about how businessmen
would behave in their commercial activities. For example, the Geneva Protocol of 1923 did
not impose any obligations for coercive enforcement through national courts, but effectively
presumed voluntary compliance.32 This assumption was also reflected in the 1923 version of
the International Chamber of Commerce (ICC) Rules, which expressly relied on business-
men’s sense of honour to ensure voluntary compliance with arbitral awards.33
By the 1950s, the founders of modern international arbitration realized that the benevolence 1.20
among disputing parties presumed by the Geneva Protocol and the Geneva Convention was
insufficient. Real mechanisms for enforcement were needed to corral recalcitrant parties
and to press reluctant national courts into enforcing agreements and awards. There were
daunting cultural, political, historic, practical, economic, and legal obstacles to creating
an effective, reliable, and enduring system of international adjudication.34 But the archi-
tects of modern international arbitration were determined in their ‘idealistic experiment
in trans-border understanding and cooperation’.35 With these goals in mind, the United
Nations Convention on the Recognition and Enforcement of Arbitral Awards (New York
Convention) was drafted to replace the Geneva Protocol and Geneva Convention. The New
York Convention adopted a more realistic view of the strategic behaviour of participants, and
mechanisms for controlling that behaviour.36
Despite its more realistic approach to ensure enforceability of arbitration agreements and 1.21
awards, the Convention reflects an implicit assumption that counsel or arbitrators could
be counted on to self-regulate. How else to explain the New York Convention’s conspicu-
ous silence about misconduct by either group?37 Just as arbitrators imposed on parties an
implicit and vague obligation to act in good faith, they must have expected the same of their
arbitrator colleagues and counsel appearing before them. Specific provisions were apparently
regarded as unnecessary.
This omission is particularly stark in contrast to early domestic arbitration laws, which were 1.22
promulgated before the New York Convention. In contrast to the New York Convention’s
justice with the assistance of the Koran; and it would be fanciful to suggest that in this very primitive region
there is any settled body of legal principles applicable to the construction of modern commercial instruments’.
See Petroleum Development (Trucial Coast) Ltd. v Sheikh of Abu Dhabi (1951) Award, 18 I.L.R. 144.
32 See John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and
Procedures (2000) 264.

33 ‘It was expected that moral norms and “the force that businessmen of a country can bring to bear upon a
recalcitrant neighbor” would be sufficient to ensure respect for arbitral awards.’ W. Lawrence Craig, ‘Some Trends
and Developments in the Laws and Practice of International Commercial Arbitration’ 30 Tex. Int’l L.J. 1, 7 (1995).
34 See Thomas E. Carbonneau, ‘The Ballad of Transborder Arbitration’, 56 U. Miami L. Rev. 773, 774 (2002).
35 See Carbonneau, ‘The Ballad of Transborder Arbitration’.
36 One of the most important developments introduced by the New York Convention was to place the bur-
den of proof in challenging recognition or enforcement of an arbitral award on the award creditor. See Albert
Jan van den Berg, The New York Arbitration Convention of 1958 (1981) 9.
37 Today, the grounds for refusing recognition or enforcement under Article V of the Convention are inter-
preted as encompassing arbitrator bias and certain types of egregious misconduct by counsel. In fact, despite
the starkly different language in the Federal Arbitration Act (FAA), the grounds for challenging awards under
the Convention are interpreted as being largely coterminous. Alan Scott Rau, ‘The New York Convention in
American Courts’, 7 Am.Rev. Int’l Arb.213, 234–5, 257 and n. 20 (1997) (‘[A]s a general matter I think it is
reasonably safe to assume that in operation the standards of the Convention and the FAA will be identical.’).
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silence, early national arbitration laws were animated by vivid suspicions about the conduct
and motives of counsel and arbitrators. For example, the English Arbitration Act of 1950
specifically identified the potential for arbitrator ‘misconduct’ or ‘improper’ procurement of
an award as a ground for refusing enforcement of an arbitral award.38 Meanwhile, the drafters
of the Federal Arbitration Act (FAA), enacted in the United States in roughly the same period
as the Geneva Protocol, demonstrated remarkable creativity in specifying the types of poten-
tial misconduct that might give rise to a legitimate challenge to an award. They suspected
that awards could be subject to ‘evident partiality’ by arbitrators, ‘corruption, fraud, . . .
undue means’ by parties, counsel or arbitrators, and generally by ‘other misbehavior’.39
1.23 In the still relatively close-knit community of international arbitration,40 however, it was
apparently unthinkable—or at least unspeakable—that its pioneers, those members of
Schacter’s Invisible College of International Lawyers, could stray from their ‘noble duties.’41
Today, even the staunchest proponents of international arbitration acknowledge that these
assumptions are no longer sustainable.42
B. Modern international arbitration

1.24 Contemporary international arbitration practice stands transformed from earlier eras.
Arbitration is the unrivalled preference for resolving international commercial disputes.43
With the success and related growth of international arbitration, several other important
trends have transformed its once cosy community into an ethical no-man’s land. Previously
unthinkable challenges to arbitrators’ conduct are now relatively commonplace. Standards
for arbitrator conduct, which used to rely on the arbitrators’ internal moral compass, have
been replaced with a plethora of more detailed new standards and rules and intensified
scrutiny by arbitral institutions. Some commentators worried or have argued, based on an
increase in absolute number of challenges, that the expansion of disclosure obligations has
led to an increase in challenges,44 a hypothesis that will be addressed later in Chapter 2.45
38
Arbitration Act 1950 § 23 (Eng.).
39
9 USC. § 10(a), (b), (c) (2010) (emphasis added).
40
As Dezalay and Garth have explained, ‘competition for arbitration business favored a few institutions and
settings. The International Chamber of Commerce was clearly the leading, even dominant, institution . . . [T]he
same, relatively few, names of arbitrators were repeated over and over on both sides of the Atlantic’. Dezalay and
Garth, Dealing in Virtue, 9.
41 Dezalay and Garth, Dealing in Virtue, 34.
42 Martin Hunter, ‘Ethics of the International Arbitrator,’ 53 Arb. 219, 220 (1987) (concluding that the world
of commercial arbitration is no longer a club of gentlemen, but one that needs explicit guidelines for conduct).
43 Sch. of Int’l Arb., Queen Mary University of London, International Arbitration: Corporate Attitudes and
Practices 2006 (2006), 5 (‘When . . . respondents were asked which mechanism they preferred to use, 73% stated
international arbitration; transnational litigation was preferred by only 11%.’). While some critics, particularly
those who focus on the high costs of international arbitration, suggest its popularity may be diminishing, there
is no ready alternative unless the case is amenable to resolution through mediation.
44 See Leon Trakman, The Impartiality and Independence of Arbitrators Reconsidered, University of New South
Wales Faculty of Law Research Series (Paper 25, 2007), 9–10 (arguing that by enacting comprehensive standards
for arbitral conduct, the IBA may have unintentionally encouraged challenges to arbitral awards); David Hacking,
‘Challenges: Theirs is to Reason Why’, 1(6) Global Arb. Rev. (2006) (citing ICC statistics for annual number
of arbitrator challenges to argue an increase); Charles N. Brower, ‘Keynote Address: The Ethics of Arbitration:
Perspectives from a Practicing International Arbitrator’, 5 Berkley J. Int’l L. Publicist 1 (2010) (reasoning that
enactment of comprehensive guidelines and publication of ethical decisions will encourage challenges).
45 See Chapter 2, paras 2.86–2.87.
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Modern international arbitration
Meanwhile, in a parallel development, ethical clashes among, and alleged misconduct by, 1.25
counsel have become more frequent and acute. These clashes are occurring more often,
sometimes as a result of good faith disagreement and sometimes as a strategic tool to gain a
tactical advantage. These developments have prompted numerous calls for the development
of ethical standards to govern counsel,46 increased pressure on international arbitrators to
make express rulings regarding attorneys’ ethical conduct, and calls for arbitral tribunals and
international organizations to provide additional guidance and resources. The specifics of
attorney ethics are addressed in Chapter 3. Attorney conduct is both key to arbitral proceed-
ings, and emblematic of and inter-related to, the conduct of experts and third-party funders,
topics that are taken up respectively in Chapters 4 and 5.
In addition, the arrival of third-party funders and the increased reliance on and expanded 1.26
role of expert witnesses have introduced whole new categories of participants whose con-
duct can affect arbitral proceedings. The inherent sense of propriety of these new partici-
pants, however, is even less reliable than counsel and arbitrators. The stake that experts and
third-party funders have in international arbitration is more attenuated than counsel and
arbitrators, and their participation is less inherently constrained by traditions and existing
procedures.
This Part surveys the three major trends in international arbitration that have produced 1.27
the current backdrop against which all these participants’ ethical conduct is evaluated:
Section 1 reviews the growth and diversification of the international arbitration field; Section
2 explores the increase in formalization and transparency of arbitration procedures; and
Section 3 examines the increased competitiveness in the market for arbitration services.
1. Growth and diversification of international arbitration

The first and most obvious trend that has transformed international arbitration is its dra- 1.28
matic growth in size and cultural diversity. The current proportions of international arbitration
practice undoubtedly surpass even the wildest expectations of its founders. Just in the last
decade, the total number of arbitrations has nearly doubled,47 and another sharp increase
has occurred since the crash of 2008. These figures do not reflect the number of ad hoc
arbitrations or those administered by the growing number of smaller, regional arbitration
centres.48
Although today a mainstay, the arrival of American companies and American law firms in 1.29
international arbitration marked an important development in both the growth and diver-
sification of international arbitration.49 Until approximately 30 years ago, international
46
See Introduction, page 4, note 13.
47 Christopher R. Drahozal and Richard W. Naimark (eds.), Towards a Science of International
Arbitration: Collected Empirical Research (2005) 341 app. 1. Tracking the increase within a single institution,
a full ‘two-thirds of all cases brought to ICC arbitration arose in the last 20 years of its 75-year existence’.
W. Lawrence Craig et al., International Chamber of Commerce Arbitration (3rd edn., 2000) 2.
48 Dezalay and Garth, Dealing in Virtue, 6–7, n. 4; StephanWilske, ‘Global Competition for the Best Place
of Arbitration for International Arbitrations – A More or Less Biased Review of the Usual Suspects and Recent
Newcomers’, 1 Contemp. Asia Arb. J.1, 53 (2008).
49
Carbonneau, ‘The Ballad of Transborder Arbitration’, 778 (‘[L]eading international lawyers on Wall Street
[eventually realized] that transborder arbitration was a force to be reckoned with in international commerce.’);
Elena V. Helmer, ‘International Commercial Arbitration: Americanized, “Civilized,” or Harmonized?’, 19 Ohio
St. J. Disp. Resol. 35, 40 (2003) (reporting that since the 1970s and early 1980s, ‘[t]he number of American
25
02_9780195337693_ch01.indd 25 9/6/2014 9:23:23 AM

arbitration had been a predominantly European affair. Although a few Americans were
active in the international arbitration system since its early beginnings, they arrived in large
numbers only in the 1980s. American attorneys brought with them not only a uniquely
adversarial American style of advocacy,50 but also a range of ethical standards that were at
odds with those of their European counterparts.
1.30 American attorneys can ethically engage in pre-testimonial communications with witnesses
and use aggressive strategic tactics, but are subject to stringent rules against conflicts of inter-
est, duties of candour to the tribunal, and obligations to comply with document requests.51
By contrast, European attorneys have a more relaxed and flexible approach to conflicts of
interest, but are usually subject to absolute prohibitions against pre-testimonial communi-
cations with witnesses in national court proceedings. European attorneys and arbitrators
meanwhile find American litigation strategies ‘barbaric.’52 Even as some leading US firms
have become important providers of international arbitration services,53 these problems have
not gone away entirely, and are analysed in greater detail in Chapter 2.
1.31 Perhaps the most disruptive importation by American attorneys was their uniquely partisan
approach to the role of the party-appointed arbitrator. Domestic US arbitration procedure
historically allowed parties and their counsel to communicate throughout arbitral pro-
ceedings with their party-appointed arbitrators, even about crucial issues involving strategy.54
Such communication is considered unacceptable in most other systems,55 and an anathema in
law firms and lawyers offering arbitration services (either as counsel or, in the case of individuals, also as arbitra-
tors) is on the rise’).
50 See generally, Lucy Reed and Jonathan Sutcliffe, ‘The “Americanization” of International Arbitration?’
16-4 Mealey’s Int’l Arb. Rep. 11 (2001).

51
John Toulmin, ‘A Worldwide Common Code of Professional Ethics?’ 15 Fordham Int’l L. J. 673, 681
(1991/1992). (‘[T]he rules of professional conduct in the United States relating to conflicts of interest and
imputed disqualification are among the strictest in the world . . . ’.)
52
John Toulmin, ‘A Worldwide Common Code of Professional Ethics?’, 681–85. As will be discussed later,
these standards affect attorneys’ and parties’ perceptions of the propriety of conduct of both arbitrators and
counsel from other systems. National differences in attorney conflict-of-interest standards as well as arbitrator
conflicts and disclosure standards are taken up in Chapter 2.
53
For rankings of law firms and lawyers in international arbitration practice, see paras 1.39–1.42.
54 See, e.g., Sunkist Soft Drinks, Inc. v Sunkist Growers, Inc., 10 F.3d 753, 759 (11th Cir. 1993) (finding no
prejudicial misconduct despite finding that party-arbitrator met with representatives and witnesses of appoint-
ing party before arbitration to plan strategy). Conflicting cultural perspectives on ex parte communication were
not an issue in cases like Sunkist because they involved solely domestic US arbitrations. Even in the United
States, however, practices such as arbitrator ex parte communications with the appointing party have met
with significant criticism. See, e.g., Carrie Menkel-Meadow, ‘Ethics Issues in Arbitration and Related Dispute
Resolution Processes: What’s Happening and What’s Not’, 56 U. Miami L. Rev. 949, 957 (2002). This topic is
taken up in greater detail in Chapter 8.
55
Amb. Malcolm Wilkey, ‘The Practicalities of Cross-Cultural Arbitration,’ in Stefan N. Frommel and
Barry A.K. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old Issues and New Trends (1999)
86 (describing differing approaches to ex parte communication as a problem in international arbitration that
must be overcome); Detlev Vagts, ‘International Legal Ethics and Professional Responsibility’, 92 Am. Soc’y
Int’l L. Proc. 378, 379 (1998) (discussing a hypothetical case involving contrasting approaches to ex parte
communication with arbitrators as basis for panel discussion). See also Hans Smit, ‘Managing an International
Arbitration: An Arbitrator’s View’, 5 Am. Rev. Int’l Arb. 129, 131 (1994) (taking the view that communica-
tions between party and party-appointed arbitrator concerning the appointment of the presiding arbitrator are
generally accepted where the party-appointed arbitrator takes part in the selection process, even if the rules are
silent); Hans Smit, ‘The Future of International Commercial Arbitration: A Single Transnational Institution?’
25 Colum. J. Transnat’l L. 9, 16 n. 40 (1986) (noting that an award rendered by an arbitrator who communi-
cates ex parte with an appointing party ‘may not be recognized in foreign countries’).
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international arbitration. This fundamental clash over the role of party-appointed arbitrators
became a cornerstone in early debates about arbitrator conduct. Even after the US practice
of partisan party-appointed arbitrators has mostly died out in domestic US arbitration,
party-appointed arbitrators remain at the centre of modern controversies about arbitra-
tors. The newest, and often most acerbic, attacks on party-appointed arbitrators challenge
the propriety of dissenting opinions by co-arbitrators in favour of appointing parties,56 and
propose eliminating the process of unilateral party-appointment altogether.57 These issues
will be taken up in Chapter 9.
International arbitration has diversified well beyond the arrival of American participants. 1.32
This diversification is illustrated, among other things, by the proliferation of arbitral insti-
tutions. At the birth of modern international arbitration, there were few institutions, and
their activities centred almost exclusively in Europe.58 Beginning in the late 1970s and early
1980s, however, centres began sprouting up around the globe—from Hong Kong, to Cairo,
to Vienna, to Kuala Lumpur, to British Columbia. Later, in the early 1990s, new centres
arrived in Singapore, the Philippines, Ha Noi, Beirut, Jakarta, Milan, and, for intellectual
property disputes, the World Intellectual Property Organization or WIPO in Geneva.59
Even more recently, centres have proliferated throughout Latin America, Africa, and the
Middle East.60 In the 1990s, the American Arbitration Association (AAA) also founded the
International Centre for Dispute Resolution, or ICDR, to administer international cases.
More recently, major European centres like the London Court of International Arbitration
(LCIA) and the ICC are sponsoring, supporting, or jointly operating new centres in India,61
56 See, e.g., Albert Jan van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment
Arbitration’, in M. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael
Reisman (2011) 821–43; Jan Paulsson, ‘Moral Hazard in International Dispute Resolution,’ Inaugural Lecture
at University of Miami School of Law (29 April 2010), 1 Transnat’l Disp. Mgmt. 10 (2010); Laurent Levy,
‘Dissenting Opinions in International Arbitration in Switzerland,’ 5 Arb. Int’l 34, 41 (1989) (arguing for a code
of conduct to govern issuance of dissenting opinions).
57 See Jan Paulsson, ‘Are Unilateral Appointments Defensible?’ Kluwer Arb. Blog, 2 April 2009, <http://
kluwerarbitrationblog.com/blog/2009/04/02/are-unilateral-appointments-defensible/> (arguing for elimina-

tion of party-appointed arbitrators).
58 The American Arbitration Association and the then-fledgling China International Economic and Trade
Arbitration Commission (CIETAC) may be considered exceptions to this general rule since they also adminis-
tered arbitration in their respective geographic homes.
59 In many of these newer institutions, the caseload growth is even more dramatic than that of the original
European centres. The Hong Kong International Arbitration Centre went from 54 cases in 1990 to 281 in
2005; the Singapore International Arbitration Centre had only two international cases in 1991, but 29 in 2005.
The Hong Kong International Arbitration Centre and the Singapore International Arbitration Centre are argu-
ably among the most prominent regional institutions, which have in turn prompted the development of a new
generation of international arbitrators.
60 Doug Sperry, ‘The Impact of International Commercial Arbitration on Developing Nations: Has the
Emergence of the International Private Justice Market Narrowed the Gap Between Developed and Developing
Parties?’ 40 Hong Kong L.J. 361, 374 (2010).
61 The ICC established its first international court of arbitration in India (New Delhi) in 1923. The LCIA
launched its first independent overseas subsidiary in India on 18 April 2009, in New Delhi: see ICC India,
<http://www.iccindiaonline.org/index.htm>; LCIA India, <http://www.lcia-india.org/>. However, the
Association of Indian Lawyers (AIL) recently successfully petitioned the High Court of Delhi to issue notice to
the New Delhi branch of the London Court of International Arbitration (LCIA) to remove the word ‘London
Court’ from its name. As of 31 May 2011, no decision has been made. See Soibam Rocky Singh, Delhi HC Issues
Notice on Working of London Court of International Arbitration in Delhi, Law et al. News, 31 May 2011, <http://
www.lawetalnews.com/NewsDetail.asp?newsid=4087>.
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Dubai,62 Singapore,63 and East Jerusalem (for disputes involving parties from Israel and
Palestine).64
1.33 While the premier centres still attract most of the mega-cases, the greatest growth in annual
caseloads is occurring at regional centres.65 Just as small community banks and credit unions
can carve out a niche by providing service that is better tailored to the local community than
large nationwide banks,66 regional arbitration institutions are regarded as providing service
and know-how that is more tailored to local markets.
1.34 Predictably, in response to local needs and concomitant with the rise of regional centres, par-
ties are appointing arbitrators and counsel who are from outside the traditionally European
pool of participants.67 These trends mean not only participants who are new to interna-
tional arbitration, but also an increase in participation by lawyers who are not part of the
global network of mega-firms. Ultimately, diversification of participants has contributed to a
breakdown in the insular, once-shared professional norms. Those shared norms had operated
as a basis for informal self-regulation, but as they have broken down, nothing has come in
to take their place.
62 The ICC founded a chapter in Dubai in 2004, and the DIFC-LCIA Arbitration Centre was founded in
February 2008 as a partnership between the Dubai International Financial Centre (established in 2004) and
the LCIA. See ICC-UAE, <http://www.iccuae.com/>; DIC-LCIA Arbitration Centre, <http://www.difcarbitra
tion.com/index.html>. From 2009–10, the DIFC-LCIA registered a dozen cases, involving parties from the
UAE, Malaysia, Oman, Norway, the Cayman Islands, Kuwait, Hong Kong, and the British Virgin Islands. The
sums in dispute in these cases range from US$50,000–US$100 million. News from the LCIA, 15 NO.2 IBA
Arb.News 112.
63
Singapore has become the Asian hub for international arbitration. The Singapore International Arbitration
Centre (SIAC) handled 198 new cases in 2010—up from 160 in 2009 and 99 in 2008. As such, the ICC opened
a regional office in Singapore in January 2010, and the LCIA opened their New Delhi office in 2009, largely
to resolve the large number of Indian arbitrations surging to the SIAC. See SIAC, 2010 CEO’s Annual Report,
<http://www.siac.org.sg/index.php?option=com_content8view=article8id=2888Itemid=148>; ICC: News,
‘ICC Inaugurates Asia Regional Office’, <http://www.iccwbo.org/index.html?id=34530>; Greg Bousfield,
‘Stepping up to Singapore: LCIA’s Indian Arbitration Mission’, Commercial Dispute Resolution, 29 April 2010,
<http://www.cdr-news.com/arbitration-and-adr/112-articles/706-stealing-from-singa pore-lcias-indian-
arbitration-mission>.
64
Catherine A. Rogers, ‘Peace, One Dispute at a Time: The Jerusalem Arbitration Center’, New York Dispute
Resolution Lawyer (Spring 2012).
65 Doug Sperry, ‘The Impact of International Commercial Arbitration on Developing Nations’, 361, 378
(describing ‘an opportunity for smaller, regional institutions to gain a foothold in the market and for new arbi-
trators from those regions to gain entry into what has traditionally been an exclusive club’).
66 Customer Satisfaction with Banks and Credit Unions Increases in 2011: Prime Performance 2011 Bank
and Credit Union Satisfaction Survey, <http://www.prweb.com/releases/Prime-Performance/Bank-and-

CU-Satisfaction/prweb9019992.htm>, 11 Dec. 2010 (finding significantly higher customer satisfaction with
credit unions and small banks).
67
For parties from developing countries, local arbitrators were regarded as necessary to counterbalance
what was regarded as biased Western-centric visions that European tribunals imposed in earlier arbitrations.
See,e.g., Ahmed Sadek El-Kosheri, ‘Is There a Growing International Arbitration Culture in the Arab-
Islamic Juridical Culture?’ in Albert Jan van den Berg (ed.), ICCA, International Dispute Resolution: Towards
an International Arbitration Culture (1998) 47, 47–48 (noting that, despite the long history and current
popularity of arbitration in Arab nations, the Arab legal community remains hostile toward transnational
arbitration because of biased treatment by Western arbitrators); John Beechey, ‘International Commercial
Arbitration’, 32, 33 (explaining that there ‘remains a huge task’ to convince developing nations that
they can expect a fair hearing before international arbitration tribunals); Dezalay and Garth, Dealing in
Virtue, 43–45.
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2. Formalization and increased transparency

Related to international arbitration’s growing in size and diversity, in recent years it has also 1.35
become procedurally more formal and transparent.68 Under current practices, parties rarely
empower arbitrators to decide the matter as amiable compositeur or ex aequo et bono.69 Instead
of these open-textured but opaque procedures, arbitral procedure has become more definite
and precise. The result is greater transparency about how and why arbitral decisions are
made. While arbitrators once had vast, unchecked discretion in ordering procedures, mod-
ern arbitral rules have shifted to give parties more control over the presentation of evidence,
in part by imposing formal rules that standardize arbitrators’ evaluation of evidence.70 One
clear illustration of this shift is the ICC Rules. The ICC Rules implement the consensus that
awards should be rendered with reasons71 and expressly prohibit arbitrators from acting as
amiable compositeurs unless the parties expressly authorize them to do so.72 Another exam-
ple is the International Bar Association’s Rules for the Taking of Evidence in International
Arbitration and other practice guidelines and protocols that arbitrators routinely adopt in
some form to order proceedings.73
At a substantive level, lex mercatoria is now rarely selected by the parties.74 Instead, choice-of- 1.36
law clauses usually require application of national law, which increases predictability and
avoids application of law that is not well developed.75 The total effect of these developments
68 The term ‘transparency’ is subject to various interpretations. In this book, I use the term to mean the
ready availability, primarily to parties, of the rules that regulate and govern international arbitration processes
and decision-making. For further analysis of how transparency is often confused with, but is distinguishable
from, ‘public access’ and ‘disclosure’, see Catherine A. Rogers, ‘Transparency in International Commercial
Arbitration’, 54 U. Kan. L. Rev. 1301, 1319 (2006).
69 One earlier study of 500 arbitration clauses revealed that only 3% of clauses empowered the arbitrators
to decide under these doctrines. See Christopher R. Drazohal, ‘Commercial Norms, Commercial Codes, and
International Commercial Arbitration’, 33 Vand. J. Transnat’l L. 79, 129 n. 233 (2000) (citing study of clauses
from 1987–89).
70 See Detlev Vagts and W. Michael Reisman, ‘International Chamber of Commerce Arbitration’, 80 Am.
J. Int’l L. 268 (1986) (reviewing W. Laurence Craig et al., International Chamber of Commerce Arbitration
(1984)).
71 William W. Park, ‘Income Tax Treaty Arbitration’, 10 Geo. Mason L. Rev. 803, 823 (2002) (‘The market-
place has pushed international arbitration toward reasoned awards.’); Rt. Hon. Lord Justice Bingham, ‘Reasons
and Reasons for Reasons: Differences Between a Court Judgment and an Arbitral Award’, 4 Arb. Int’l 141, 145
(1988) (noting the ‘strong balance of international opinion in favour of the giving of reasons by arbitrators’);
Donald P. Arnavas and Rt. Hon. Lord David Hacking, Using ADR to Resolve International Contract Disputes,
Briefing Papers no. 04-11 (Oct. 2004) (explaining that reasoned awards have always been the norm in interna-
tional arbitration, but with the shift to more formalized and rule-based decision-making, awards have necessar-
ily become longer and more detailed).
72
See ICC R. Arb.art. 17(3) (1 Jan. 1998), <http://www.iccwbo.org/uploadedFiles/Court/Arbitration/
other/rules_arb_english.pdf> (regarding amiable compositeurs); ICC R. Arb. art. 25(2) (requiring reasoned
awards). Similarly, the AAA website admonishes, ‘You should not compromise unless the dispute clearly calls
for this result. Parties generally expect a decision on the issues.’ American Arbitration Association, A Guide for
Commercial Arbitrators, <http://www.adr.org/si.asp?id=4211>.
73 See Born, International Commercial Arbitration (2014) 2269.
74 See Drazohal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’,129.
75 See Christopher R. Drahozal, ‘Contracting Out of National Law: An Empirical Look at the New Law
Merchant’, 80 Notre Dame L. Rev. 523, 537–46 (2005) (reporting results of empirical research that demon-
strate parties overwhelmingly choose national law and hypothesizing that national law is preferred because it
is more predictable than alternative transnational legal rules); 2010 International Arbitration Survey: Choices
in International Arbitration, Queen Mary University of London, 11–16 (highlighting the fact that many cor-
porations now rely on choice of law provisions to determine which substantive law will govern a dispute,
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is that international arbitration has become a more complex, sophisticated, and formal
method for resolving international disputes.76
1.37 Critics complain that in its modern incarnation, international arbitration is less recognizable
as a form of ‘alternative dispute resolution’77 than as a type of ‘offshore litigation’.78 This trans-
formation has been both celebrated and decried as the ‘judicialization’ of arbitration and, in
some instances, the ‘Americanization’ of international arbitration.79 While there is considerable
debate regarding the efficacy of some of these developments,80 they have undoubtedly increased
transparency and raised new challenges regarding the ethical conduct of participants in the
system.
1.38 As the procedures that govern arbitral proceedings have become more refined, formal,
and transparent, they increasingly contrast with integrally related ethical issues, which
remain vague, indeterminate, and hopelessly ad hoc. The result is an increased pres-
sure for advances in the rules that govern the professional conduct of various actors
in the system. One response to these increased pressures was the promulgation of the
IBA Guidelines on Conflicts of Interest in International Arbitration regarding arbitra-
tors, along with various efforts by arbitral institutions to make their disclosure and chal-
lenge standards more transparent and predictable. These developments are explored in
Chapters 2 and 6. With regard to counsel ethics, advances have been much slower, but
momentum has been growing and important new developments (taken up in Chapters 3
and 6) are in the works.81 Even more recently, and less developed, are responses to grow-
ing concerns about the conduct of experts and third-party funders (taken up respectively
in Chapters 4 and 5).
discussing the procedures that institutions use to make this choice, and arguing certain factors lead entities to
use these mechanisms); see also Ryan E. Bull, Note, ‘Operation of the New Article 9 Choice of Law Regime in
an International Context’, 78 Tex. L. Rev. 679, 706 (2000).
76 While the trend is important to recognize, the goal of formality should not be overstated. For many, flex-
ibility remains an important feature of international arbitration.

77
See Christian Bühring-Uhle, Arbitration and Mediation in International Business: Designing Procedures for
Effective Conflict Management (Kluwer Law International, 1996) 17–36.
78 Dezalay and Garth, ‘Fussing About the Forum’, 311.
79
See generally, R. Lillich and C. Brower (eds.), International Arbitration in the 21st Century: Towards
‘Judicialization’ and Uniformity [Twelfth Sokol Colloquium] (1993) (critiquing the need for balance between
flexibility and certainty); Klaus Peter Berger, Private Dispute Resolution in International Business (2006) 303
(‘It is particularly in major, multi-million dollar arbitrations that the informal atmosphere . . . has given way to
confrontation and litigation tactics, hitherto known only from proceedings before national courts. Over the
past decades, the arbitral process has undergone a fundamental transformation which is often characterized as
the “judicialization” of arbitration . . .’).
80 Critics of the ‘Americanization’ of international arbitration use the term to describe a growing ‘unbridled
and ungentlemanly aggressivity and excess’ in arbitration, a ‘total warfare’ characterized by excesses of US-style
discovery and distended briefs and document submission. Yet most scholars view the trend not so much as one
of ‘judicialization’ or ‘Americanization’, but rather as one of ‘harmonization’ or ‘homogenization’—a merg-
ing of common and civil law traditions. See Kevin T. Jacobs and Matthew G. Paulson, ‘The Convergence
of Renewed Nationalization, Rising Commodities, and “Americanization” in International Arbitration and
the Need for More Rigorous Legal and Procedural Defenses’, 43 Tex. Int’l L.J. 359, 364 (2008); Elena V.
Helmer, ‘International Commercial Arbitration: Americanized, “Civilized”, or Harmonized?’ 19 Ohio St. J.
on Disp. Resol. 35, 37 (2003); Nicolas C. Ulmer, ‘A Comment On “The ‘Americanization’ of International
Arbitration?” ’ 16-6 Mealey’s Int’l Arb. Rep. 1 (2001); Lucy Reed and Jonathan Sutcliffe, ‘The “Americanization”
of International Arbitration?’ 16-4 Mealey’s Int’l Arb. Rep. 11 (2001).
81
See Chapter 3, paras 3.85–3.103.
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3. Economic competition in international arbitration

Another important trend, related to its expansion and diversification, is that international 1.39
arbitration has become more expressly entrepreneurial. Arbitration awards mean not only
large awards for prevailing parties, but also large fees for those rendering arbitral services.
In law firms, international arbitration practice groups compete to get the biggest and most
high-profile cases.82 Arbitral institutions compete to attract cases. States, and even cities,
compete to attract arbitration business.83 Arbitrators compete to preside over the largest and
most high-profile cases.84 Today, scorekeepers keep careful track of all this data.
An ‘Annual Scorecard’ published by The American Lawyer magazine provides what it calls 1.40
‘[a]n inside look at more than 100 major disputes from the secret world of arbitration.’85
Ratings agencies provide industry evaluations,86 academics conduct empirical research
to measure which institutions and States attract the most cases,87 and various industry
82
Actual data on attorney fees in international arbitration is often prone to exaggeration and extrapolation,
with little empirical evidence. However, the generous size of such fees can be inferred from data on interna-
tional arbitral awards. See, e.g., David Smith, Note, ‘Shifting Sands: Cost and Fee Allocation in International
Investment Arbitration’, 51 Va. J. Int’l L. 749 (2011) (citing numerous examples of legal costs in interna-
tional investment arbitration); Susan D. Franck, ‘Empirically Evaluating Claims About Investment Treaty
Arbitration’, 86 N.C. L. Rev. 1, 66–68 (2008) (while the empirical validity of claims of costs of arbitration is
uncertain, costs often run in the US$ millions, with legal fees a significant part); David A. Gantz, Investor-State
Arbitration Under ICSID, The ICSID Additional Facility and the UNCTAD Arbitral Rules, (US Vietnam
Trade Council Seminar Series, 2004) 23, <http://www.usvtc.org/trade/other/Gantz/Gantz_ICSID.pdf> (legal
fees for major law firms who represent investors and host governments range from US$200 to US$500 per hour,
but may be negotiable (downward)).
83 William W. Park, ‘National Law and Commercial Justice: Safeguarding Procedural Integrity in
International Arbitration’, 63 Tul. L. Rev. 647, 680 (1989) (documenting a ‘scramble among Western European
nations’ to compete for international arbitration business); Sir Michael J. Mustill, ‘Arbitration: History and
Background’, 6-2 J. Int’l Arb. 43, 53 (1989) (‘[O]ne must take note of the efforts made by individual nations
to make their arbitration laws . . . more attractive.’). Efforts by specific jurisdictions such as Japan, Singapore,
New York, and Florida to attract international arbitration business are discussed in Chapter 1, paras 1.78–1.84.
84
John Yukio Gotanda, ‘Awarding Costs and Attorneys’ Fees in International Commercial Arbitrations’, 21
Mich. J. Int’l L. 1, 1–3 (1999) (noting that an overwhelming number of countries permit arbitrators to award
costs and fees, which often run into the millions of dollars). One detractor goes so far as to argue that since
arbitrators’ fees under the ICC Rules are set based on ‘the complexity of the case, as reflected in the award’,
arbitrators have ‘an incentive to write unnecessarily elaborate opinions’. Julia A. Martin, ‘Arbitrating in the
Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific
Alternative Dispute Resolution’, 49 Stan. L. Rev. 917, 967 (1997).
85
To create the Scorecard, reporter Michael Goldhaber gathers and publishes information about the largest
arbitrations relying ‘primarily on information supplied by lawyers involved in the cases, supplemented in some
cases by arbitration or court papers, securities disclosures, and media reports. In many cases we have had to rely on
information from only one side in the dispute, and we were not able to obtain a response from the other side in all
cases’. Michael D. Goldhaber, ‘Arbitration Scorecard: Methodology’, The American Lawyer (Online) 1 July 2011,
<http://www.lexisnexis.com/lawschool/research/default.aspx?ORIGINATION_CODE=000928signoff=>.
86 2011–2012 ‘Best Law Firms’, US News and World Report, <http://bestlawfirms.usnews.com/search.asp
x?practice-area-id=488practice-area=International+Arbitration+-+Commercial> (rankings are based on a rigor-

ous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading
attorneys in their field, and review of additional information provided by law firms as part of the formal
submission process); Chamber and Partners (5 Feb. 2012), <http://www.chambersandpartners.com/Search
/?International-Arbitration> (allowing parties to search for highly ranked firms and attorneys based on specified
practice area and expertise within given arbitral institution).
87 2010 International Arbitration Survey: Choices in International Arbitration, Queen Mary University of
London, 18–19 (finding that London, England was the most popular choice of seat for international arbitra-
tions; followed by Geneva, Switzerland; Paris, France; Tokyo, Japan, and others. Factors that helped determine the
seat include: convenience, infrastructure, application of substantive law, corporate policy, location of parties,
and less influential concerns).
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publications have started awarding prizes that distinguish top performers.88 These sources not
only measure competition within the industry, but also increase the stakes of that competition.
1.41 Not surprisingly, all this competition has produced a new breed of arbitrator, who regards
participation in arbitration as an entrepreneurial venture.89 Meanwhile, since service as an
arbitrator is one of the best credentials for attracting business as counsel, arbitrator status is
no longer pursued solely as an end in itself. It is also a means of increasing a lawyer’s rainmak-
ing potential.90 As Jan Paulsson has explained, ‘the age of innocence has come to an end . . .
[and] the delightful discipline of a handful of academic aficionados . . . has become a matter
of serious concern for great numbers of professionals determined to master a process because
it is essential to their business’.91
1.42 These various trends—the expansion, diversification, increased transparency, and increased
competitiveness—have important implications for the ethical conduct of participants in
international arbitration. In many respects, these trends track the expansion and globaliza-
tion of the legal profession more generally and therefore are best understood in light of those
developments.
C. Globalization of the legal profession

1.43 The ethical challenges facing international arbitration practice echo the challenges facing
national legal professions more generally. As Detlev Vagts observed years ago in his call for
international governance of the legal profession, in close-knit professional communities,
everyone ‘know[s] what they are supposed to do. In the rare case that somebody is tempted
to lapse from grace, the prospect of disapproval by one’s peers is deterrence enough’.92 As
national and global legal practice expanded in size and diversified geographically, informal
mechanisms became clearly inadequate, just as in international arbitration.
88 Among the most well-known prizes are those administered by the Transnational Dispute Management
Journal and OGEMID. See <http://www.transnational-dispute-management.com/ogemidawards/>.

89
As the Special Committee on Professionalism of National Academy of Arbitrators summarized: ‘There are
those among us who view arbitration primarily as a business. They are likely to concentrate more on self-interest
than the interest of the profession . . . We recognize that arbitrators are no less ambitious than other profession-
als; we recognize that many of us are dependent on arbitration fees for a livelihood.’ Report of Special Committee
on Professionalism of National Academy of Arbitrators, Daily Lab. Rep. (BNA) No. 106, E-1, E-4 (4 June 1987),
cited in Alan Scott Rau, ‘Integrity in Private Judging’, 38 S. Tex. L. Rev. 485, 485 (1997). See also Dezalay and
Garth, Dealing in Virtue, 34–36.
90 Although arbitrators’ fees are often pointed to as extravagant, in fact empirical research indicates
that they represent only a small fraction of the overall costs of an arbitral dispute. Attorney fees are by far
the highest percentage of costs. ICC Commission Report on Techniques for Controlling Time and Costs in
Arbitration, <http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Arbitration-
Commission-Report-on-Techniques-for-Controlling-Time-and-Costs-in-Arbitration/> (finding that only
18% of costs are attributable to arbitrator and administrative fees). The implication, verified by anecdotal
research, is that partners at leading law firms, whose fees on a particular case involve an entire team of attorneys,
earn more as counsel than when serving in the same case as an arbitrator.
91 Dezalay and Garth, Dealing in Virtue, 37. In a similar vein, David Hacking reflects, ‘The small community
of international arbitrators, who know and trust one another, is gone. Peer-group control will no longer be here to
preserve the “ethics” of international arbitration’. David Hacking, ‘Ethics, Elitism, Eligibility: A Response: What
Happens if the Icelandic Arbitrator Falls Through the Ice?’ 15 J. Int’l Arb.73, 77 (1998).
92
Detlev F. Vagts, ‘The International Legal Profession: A Need for More Governance?’ 90 Am. J. Int’l L.
250, 250 (1996).
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Globalization of the legal profession
1. The rise of the mega law firm

Until the last 40 years, most lawyers were sole practitioners or members of relatively inti- 1.44
mate firms of partners all of whom knew each other and primarily serviced local clients on
local matters in local courts.93 In the United States, the few firms that ventured overseas
did so only haltingly and usually in response to a specific client need rather than as part
of a larger mission to establish a global practice.94 There was no such thing as a global law
firm, and even the largest firms would be considered miniscule in comparison with today’s
behemoths.
When law practice was primarily local, professional regulation was informal and more about 1.45
social cohesion. As Charles Wolfram explains, bar associations in the United States grew out
of ‘eating clubs’.95 This tradition, in turn, developed out of the English socializing function
of the Inns of Court in London. The Inns of Court were instrumental in acculturating new
members and still have eating rooms as a central feature of their architecture.96 Formal regu-
lation was similarly underdeveloped at the national level, and written codes were scarce and
largely regarded as unnecessary.97
Back when the New York Convention was being drafted in the 1950s, the American Bar 1.46
Association’s ambitious new Canon of Attorney Ethics was only a few decades old. Soon
enough, it would prove to be highly unsatisfactory. The Code of Professional Responsibility
would not replace it until 1970, and the ink was still drying on the American Canons of
Judicial Ethics, which were regarded as largely advisory.98 On the other side of the Atlantic,
the British Solicitors’ Practice Rules had only been penned in 1936, but in most other parts
of Europe and the rest of the world, written codes and organized bar associations were still largely
unknown.99 It was not until 1977 that the Council of Bars and Law Societies of Europe (the
93
As Mary Daly explains: ‘Until recently, lawyers infrequently practiced in more than one state. Law firms
rarely established branch offices, with the possible exception of an office in Washington, D.C. or in a distant
city to meet the particular needs of a single client. Consequently, in searching for ethical guidance, lawyers,
courts, and disciplinary authorities looked only to the professional standards adopted by a single jurisdiction,
the lawyer’s state of general admission or the court to which the lawyer had been admitted pro hac vice.’ Mary C.
Daly, ‘Resolving Ethical Conflicts in Multijurisdictional Practice—Is Model Rule 8.5 the Answer, an Answer,
or No Answer at All? ’ 36 S. Tex. L. Rev. 715 , 719 ( 1995 ) . For an insightful analysis of how the term
‘partner’ has become something of a misnomer as US law firms have erupted into large corporate-like struc-
tures that sprawl across multiple jurisdictions, see David B. Wilkins, ‘Partner, Shmartner! EEOC v Sidley Austin
Brown & Wood’, 120 Harv. L. Rev. 1264 (2007).
94 One of the earliest examples is when John Foster Dulles of New York firm Sullivan & Cromwell played
a key role in the negotiations of the Versailles Treaty at the end of the First World War and his firm went on to
promote capital flow from North America to Europe. John Flood and Fabian Sosa, ‘Lawyers, Law Firms, and
the Stabilization of Transnational Business’, 28 Nw. J. Int’l L. & Bus. 489, 502 (2008).
95
See, e.g., Charles W. Wolfram, Modern Legal Ethics (1986) 53.
96 As Lord Woolf has explained, ‘All barristers will have to be members of one of the four Inns of Court
and before they are called to the bar by their Inn. The dining process is an important part of developing the
collegiate culture which contributes to professional standards.’ Right Hon. Lord Woolf, ‘The Atlantic Divide’,
34 Tulsa L.J. 657 (1999); see also Peter A. Joy, ‘Making Ethics Opinions Meaningful: Toward More Effective
Regulation of Lawyers’ Conduct’, 15 Geo. J. Legal Ethics 313, 321 and n. 23 (2002) (noting that at the Inns
of Court in London ‘initiates to the legal profession joined a close-knit group with common eating rooms and
common goals’).
97 See Detlev F. Vagts, ‘Professional Responsibility in Transborder Practice: Conflict and Resolution’, 13
Geo. J. Legal Ethics 677, 688–9 (2000); Vagts, ‘The International Legal Profession’, 250.
98 See Ronald D. Rotunda, ‘Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA
Judicial Code’, 34 Hofstra L. Rev. 1337, 1353 (2006).

99
See Vagts, ‘The International Legal Profession’, 250.
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CCBE) drew up a very general statement of the principles of professional conduct that apply to
European lawyers, known as the Declaration of Perugia.100
1.47 Today, the small legal communities of the 1950s have mostly given way to larger, increasingly
dispersed law firms.101 This is particularly true with respect to US- and UK-based firms. As
David Wilkins describes:
In the 1960s, there were only twenty law firms in New York City with more than fifty lawyers,
with the largest, Shearman & Sterling, consisting of 125 lawyers. By the turn of the twentieth
century, there were more than 250 U.S. firms larger than Shearman’s old size, with more than
ten firms of over 1000 lawyers. The growth since 2000 has been even more torrid—until, of
course, the fourth quarter of 2008. In 2006, the median size of the nation’s 250 largest firms
had ballooned to over 500, with more than twenty firms topping the scales at over 1000—and
four breaking the 2000-lawyer barrier.102
Comparatively, of the top 100 European and top 200 UK law firms in 2011 and 2010,
respectively, four firms had over 2000 lawyers, eleven boasted more than 1000 lawyers and
31 firms had over 500 lawyers.103 European law firm growth has been most pronounced in
the UK. Until 1967, a statute capped London firms at 20 persons,104 but UK firms rapidly
expanded during the mid-1980s. By 2010, six of the top 20 worldwide firms were headquar-
tered in the UK.105 Similarly, whereas not a single German corporate firm had more than 50
lawyers in 1989,106 by 2010 16 of the top 100 European firms were German.107
1.48 As a result of this growth in the size of law firms and national legal practices more generally,
most countries now have written codes of ethics, even if there remains significant variation
in their level of detail and available sources of interpretation.108 Perhaps even more striking
than the relative growth in size of law firms is the geographic diversification of the legal
profession.
100 CCBE, The Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies
of the European Community (1977). See also Louise L. Hill, ‘Lawyer Publicity in the European Union: Bans
Are Removed but Barriers Remain’, 29 Geo. Wash. J. Int’l L. & Econ. 381, 390 (1995) (explaining that the
Declaration of Perugia attempted to harmonize and define common principles for the various rules of profes-
sional conduct for EU lawyers).
101
See Marc Galanter and William Henderson, ‘The Elastic Tournament: A Second Transformation of the
Big Law Firm’, 60 Stan. L. Rev. 1867, 1882 (2008).
102 David B. Wilkins, ‘ Team of Rivals? Toward a New Model of the Corporate Attorney-Client Relationship’,
78 Fordham L. Rev. 2067, 2089 (2010) (internal citations omitted); see also James W. Jones, ‘The Challenge of
Change: The Practice of Law in the Year 2000’, 41 Vand. L. Rev. 683 (1988).
103 In 2009, of the top 100 European firms, one firm (Garrigues) had over 2000 lawyers, two had over 1000,
and six had over 500. See ‘European 100: The Continental Elite 2011’, The Lawyer, <http://www.centaur2.
co.uk/emags/thelawyer/tl_Euro100_2011/>; ‘UK Annual Report 2010: The Cost of Cutting’, The Lawyer,
<http://www.centaur2.co.uk/emags/thelawyer/uk200_2010/>; ‘European 100: The Continental Elite 2009’,
The Lawyer, <http://www.centaur2.co.uk/emags/thelawyer/TL_Euro_100/>.
104 John Flood, ‘Megalaw in the U.K.: Professionalism or Corporatism? A Preliminary Report’, 64 Ind. L.J.
569 (1989).
105 ‘The Am Law 100 2010: Gross Revenue: Baker & McKenzie Tops Skadden’, American Lawyer, <http://
www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202448484841>.
106 Glenn Morgan, ‘Institutional Legacies and Firm Dynamics: The Growth and Internationalization of UK
and German Law Firms’, 26(12) Org. Stud. 1765, 1773 (2005).
107 ‘European 100: The Continental Elite 2011’, The Lawyer, <http://www.centaur2.co.uk/emags/thelawyer/
tl_Euro100_2011/>.
108 Geoffrey C. Hazard Jr and Angelo Dondi, Legal Ethics: A Comparative Study (2004) 152–3. For example,
in Korea, the documents that delineate attorneys’ ethical obligations ‘are collectively six pages long’. Robert
W. Wachter, ‘Ethical Standards in International Arbitration: Considering Solutions to Level the Playing Field’,
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Globalization of the legal profession
2. The mega-firm goes global

In the same period that small firms gave way to larger firms and informal social controls 1.49
gave way to formal regulation, localism gave way to globalism. Foreign offices are no longer
eccentric analogues to a firm’s ‘main practice’. At least in US and UK law firms, an overseas
presence is today an essential credential for competing effectively in the global marketplace.
The figures measuring this transition are staggering.
Prior to World War II, only four US law firms had an overseas office.109 By 2004, 64 of the 1.50
top US-based firms had offices abroad supporting 386 foreign law offices in 55 cities staffed
by over 8,700 attorneys.110 US-based firms had several inherent advantages in globalizing,
beginning with their early size advantage, which in turn has led to greater opportunities for
profits and expansion.111 Globalization has become a key factor for law firm profitability and
success.112 As of 2009, five out of 10 of ‘the world’s highest-grossing firms had more than
60% of their lawyers working in countries outside of the firm’s home country.’113
These developments are similarly reflected in World Trade Organization (WTO) statistics 1.51
about global trade in legal services, which show the United States having 54% of interna-
tional trade in legal services, Europe with 36.5%, and Asia with 9.4%.114
Despite these developments, there is an inherent tension underlying the globalization of 1.52
legal practice. Globalization is about opening markets for suppliers, increasing competition
among them, and increasing choice for consumers of their products. From the perspective
of economists and trade representatives, these goals would seem to apply to legal services as
much as any other service industry.115 These goals are not, however, always an easy fit with
24 Geo. J. Legal Ethics 1143, 1149–50 (2011). In their brevity, these sources ‘leave out details about what
specific tactics are permitted or forbidden in adversarial proceedings’ and ‘there is very little written com-
mentary on this subject from academics and practitioners’. See Wachter, ‘Ethical Standards in International
Arbitration’, 1049. The explanation for this ‘dearth’ of formal regulation is that ‘The Korean bar is relatively
small and culturally homogeneous, so the unwritten and unspoken code fills in all of the gaps from the
six pages of the Ethics Charter and the Ethics Regulation’. Wachter, ‘Ethical Standards in International
Arbitration’, 1049.
109
See Carole Silver, ‘Winners and Losers in the Globalization of Legal Services: Situating the Market for
Foreign Lawyers’, 45 Va. J. Int’l. L. 897, 916–17 (2005) (noting the growth of foreign offices backed by US
law firms). Notably, these statistics come from a study of only 60 firms; the overall number is probably higher.
110 Silver, ‘Winners and Losers in the Globalization of Legal Services’, 916.
111 The historical dominance of US firms may soon be challenged. US law firms are generally prohibited
from engaging in multi-disciplinary practice structures, but must compete with such structures that are increas-
ingly permitted by competing jurisdictions, such as the UK and Australia. See Ted Schneyer, ‘“Professionalism”
as Pathology: The ABA’s Latest Policy Debate on Non-lawyers’ ownership of Law Practice Entities’, 40 Fordham
Urb. L.J. 75 (2012).
112 See Steven Mark, ‘Harmonization or Homogenization? The Globalization of Law and Legal Ethics—An
Australian Viewpoint’, 34 Vand. J. Transnat’l L. 1173 (2001).

113
Compare ‘The Global 100’, 10/2009 Am. Law. 191 (2009); with ‘The Great Game’, 10/2009 Am. Law.
134 (2009).
114 WTO, Council for Trade in Services, LegalServices—Background Note by the Secretariat, WTO Doc
S/C/W/43, <http://docs.wto.org>, select ‘Search’, select ‘All documents’, search Document number: ‘98-2691’
[1998 WTO Report]; WTO, Council for Trade in Services, LegalServices—Background Note by the Secretariat,
WTO Doc S/C/W/318, <http://docs.wto.org>.
115
For an insightful analysis of the trade implications on legal services, see Laurel S. Terry, ‘The Future
Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”’, J. Prof.
Law. 189 (2008); Laurel S. Terry, ‘From GATS to APEC: The Impact of Trade Agreements on Legal Services’,
43 Akron L. Rev. 875 (2010).
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the conventional view of lawyers as creatures of national law, national training, and national
licensing and regulation.
1.53 Lawyer self-regulation has historically been premised on a ‘state-sanctioned [monopoly on]
the delivery of legal services in return for assurances of ethical behavior’ by the legal
profession.116 While a professional monopoly has traditionally been a defining feature of
the legal profession, its pre-eminence is being challenged by the march toward increasingly
global free markets and by development of overlapping national regulatory authority over
professional activities. This tension raises many questions for the regulation of transnational
legal services, with special implications for international arbitration.
D. Regulation of transnational law practice

1.54 Contemporary law practice, including international arbitration practice, is indisputably
global, with even small and medium-sized firms participating in the global market for
legal services.117 Ethical regulation by bar authorities, however, remains largely local and
territorial.118 The distinction between these two phenomena can be likened to two contrast-
ing maps.119 Ethical regulation is like a map delineating the physical territories of political
entities. Law practice, however, is like a map of weather patterns. Political units regulate
within their borders and carefully guard against various types of intrusion. No sovereign,
however, expects or attempts to prevent clouds or the wind from passing into or out of their
territory. Until recently, domestic professional regulatory authorities seemed to treat the
globalization of law practice as a force of nature, as difficult to control as the weather.
1.55 One particularly poignant example of this sense of regulatory impotence is in the aftermath
of the disastrous gas leak at the facility of a Union Carbide subsidiary in Bhopal, India in
1984. Within hours after gruesome details became public, dozens of American attorneys
descended en masse on distressed, unsophisticated, and often illiterate Indian victims. In
apparent violation of several US ethical rules, and in clear violation of Indian ethical rules,120
these US attorneys directly solicited victims and convinced them to sign contingent fee
retainer agreements for tort actions to be brought in the United States. Apparently, the fact
that many victims did not speak English or understand the agreements did not influence
116 Laurence Etherington and Robert Lee, ‘Ethical Codes and Cultural Context: Ensuring Legal Ethics in
the Global Law Firm’, 14 Ind. J. Global Legal Stud. 95, 97 (2007).
117 See Carole Silver, ‘Regulatory Mismatch in the Market for Legal Services’, 23 Nw. J. Int’l L. & Bus. 487,
495 (2003) (‘The international label is not claimed only by large law firms; even small firms participate in this
specialty.’). This phenomenon is a logical counterpart of the increased participation of smaller and medium-
sized companies in the global economy.
118
Laurel S. Terry, ‘A Case Study of the Hybrid Model for Facilitating Cross-Border Legal Practice: The
Agreement Between the American Bar Association and the Brussels Bars’, 21 Fordham Int’l L.J. 1382, 1384
(1998) (‘[D]espite the increase in scholarly writing on this topic, the development of cross-border practice
throughout the world has vastly outpaced the theory of whether and how such practice should be regulated’);
Justin Castillo (Reporter), ‘International Law Practice in the 1990s: Issues of Law, Policy and Professional
Ethics’, 86 Am. Soc’y Int’l L. Proc. 272, 282 (1992) (‘International . . . ethics is an area where there is little solid
information available’).
119 This image is borrowed from Bernard L. Greer, Jr, ‘Professional Regulation and Globalisation: Toward a
Better Balance’, in J. Ross Harper (ed.), Global Law in Practice (1997) 169, 169–70.
120 In India there is ‘an absolute bar’ on attorney advertising and solicitation, which would even preclude
Indian attorneys from being listed on a referral website. Michael A. Gollin, ‘Answering the Call: Public Interest
Intellectual Advisors’, 17 Wash. U. J. L. & Pol’y 187, 209 (2005).
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Regulation of transnational law practice
the attorneys’ efforts. One attorney boasted that he had obtained more than 7,000 signed
contingency fee agreements within five working days of the gas leak, meaning approximately
one agreement every 60 seconds.121
Despite the apparent ethical violations,122 neither US nor Indian bar authorities ever sought 1.56
to discipline these attorneys.123 Whatever other reasons may have contributed, one explana-
tion for the inaction was likely that the relevant regulatory authorities regarded the attor-
ney conduct at issue as outside the purview of their disciplinary power. For the American
authorities, their rules and disciplinary jurisdiction did not apply overseas in 1984.124 For the
Indian authorities, their ethical rules did not apply to foreign attorneys acting in court cases
pending in the United States.125
Today, similar conduct is less likely to escape some form of regulatory oversight or discipline 1.57
from either the host or the home jurisdiction. Two more recent cases alleging mass toxic
tort claims in Nicaragua and Ecuador illustrate the point. In both cases, US attorneys have
faced serious potential discipline in the United States for alleged misconduct that occurred
in the foreign country and related to foreign proceedings.126 It is not only the passage of time
that produced different responses.127 These later cases registered on the radar of disciplinary
authorities not because of new activism, but because complaints were brought by opposing
121 David T. Austern, ‘Is Lawyer Solicitation of Bhopal Clients Ethical?’ Legal Times, 21 Jan. 1985, 16.
122 See Austern, ‘Is Lawyer Solicitation of Bhopal Clients Ethical?’; ‘Bhopal Is for Lawyers’, 37 (1) Nat’l.
Rev., 11 Jan. 1985, 20.
123 Perceptions of opportunism by US attorneys may have contributed to India’s decision to become the
sole representative of the Bhopal victims and its opposition to any compensation being paid to attorneys who
initiated the cases in the United States.
124 In fact, it was not until 2006 that the American Bar Association explicitly provided through Model Rule
8.5, one of the Model Rules that can be adopted by individual states, that jurisdiction of state regulatory author-
ities would extend to attorney conduct outside the United States. For an extended discussion of the jurisdiction
and choice-of-law issues related to regulation of US attorneys engaged in law practice outside the United States,
see Catherine A. Rogers, ‘Lawyers Without Borders’, 30 U. Penn. Int’l L. Rev. 1035 (2009).
125 Contingency fees are generally prohibited in most other countries, although recently there has been some
softening as many European jurisdictions are exploring. Mark A. Behrens et al., ‘Global Litigation Trends’, 17
Mich. St. J. Int’l L. 165, 183–84 (2009).
126 See In re Girardi, 611 F.3d 1027 (9th Cir. 2010), amended, 08-80090, 2010 WL 3517899 (9th Cir.
Sept. 10, 2010) (holding that a formal reprimand of one attorney was appropriate discipline for reckless-
ness in determining false statements or documents, and six-month suspension was appropriate discipline for
attorneys’ knowing submission of false documents); In re Chevron Corp., 749 F. Supp. 2d 141, 146 (S.D.N.Y.
2010), aff’d sub nom. Lago Agrio Plaintiffs v Chevron Corp., 409 F. App’x. 393 (2d Cir. 2010) (denying motion
to quash subpoena seeking testimony and documents from a New York attorney regarding alleged miscon-
duct, including intimidating Ecuadorian judges, obtaining political support for the Ecuadorian lawsuit, pro-
curing and packaging expert testimony for use in Ecuador, pressuring Chevron to pay a large settlement,
and obtaining a book deal); Michael Goldhaber, ‘Chevron Plaintiffs Double Feature: Emery Celli Moves
to Withdraw in New York Discovery Case’; ‘Patton Boggs Accuses Gibson Dunn of Tortious Interference’;
‘Very Different Responses: Firms Repping Chevron Plaintiffs Offer Up Double Feature Corporate Counsel’,
The American Lawyer (Online) 9 February 2011, <http://www.lexisnexis.com/lawschool/research/default.
aspx?ORIGINATION_CODE=000928signoff=off>.
127 Apart from violation of local ethical rules, States have also shown some willingness to impose criminal
sanctions on foreign attorneys who violate local criminal laws. For example, taking of a deposition is a com-
mon practice in the United States, but is considered unethical and illegal in many other countries, such as
Brazil. According to the US Department of State: ‘The Government of Brazil asserts that, under Brazilian
Constitutional Law, only Brazilian judicial authorities are competent to perform acts of a judicial nature in
Brazil. Brazil has advised it would deem taking depositions in Brazil by foreign persons to be a violation of
Brazil’s judicial sovereignty. Such action potentially could result in the arrest, detention, expulsion, or deporta-
tion of the American attorney or other American participants.’ US Dep’t of State, Brazil Judicial Assistance,
<http://travel.state.gov/law/judicial/judicial_672.html>.
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parties as part of their case strategy. According to anecdotal reports, this technique appears to
be on the rise also in international arbitration, as parties and counsel are reportedly respond-
ing to ethical conflicts within arbitral proceedings by petitioning national bar authorities for
disciplinary action against allegedly offending attorneys.
1.58 These developments suggest that ethical conflicts in international arbitration may be more
likely to be raised in national contexts. Relatedly, there is an increased potential for national
legal systems being pressed to become more active regulators of attorney conduct in inter-
national arbitration. One problem with these developments, however, is that recourse for
ethical misconduct is only available through some national bar authorities. Even today, as in
the era of Bhopal, apart from a few active jurisdictions, national bar rules and disciplinary
authority often do not apply to conduct that occurs abroad or in international arbitral pro-
ceedings. This book argues that national authorities are not efficient or effective regulators
for conduct in international arbitration. Nevertheless, national regulation of transnational
legal practice is an important backdrop for understanding ethical regulation in international
arbitration, and support from national bar authorities will be essential for self-regulation in
international arbitration.
1. National regulation of transnational legal practice

1.59 Perhaps the most significant marker of the globalization of the legal profession is that today
many local bar authorities expressly allow foreign attorneys to conduct legal activities in their
jurisdiction. This authorization is almost always conditioned on the requirement that they
‘register’ as foreign attorneys or ‘foreign legal consultants’.128 Many jurisdictions also require
that they affiliate with locally licensed attorneys. In this status, foreign legal consultants are
subject to regulation as local attorneys. They are usually precluded, however, from advising
on local law—often very broadly defined129—or appearing in local courts.130 One exception
is the European Union, which has developed very broad opportunities for cross-border prac-
tice among lawyers from other European Member States.131
1.60 At the other end of the spectrum, there are some holdouts that have resisted opening
their legal markets. To varying degrees, Korea, Japan, China, and India have offered
considerable resistance to penetration by US and UK firms,132 with India being the most
128 Laurel S. Terry et al., ‘Transnational Legal Practice 2009’, 44 Int’l Law. 563, 569 (2009).
129 For example, in Hong Kong, ‘practice of law’ is defined broadly enough to include ‘provid[ing] general
guidance as to what foreign lawyers and firms may not do’ and any activity that ‘can properly be regarded
as a service customarily provided by a solicitor in his capacity as such’. Darryl D. Chiang, ‘Foreign Lawyer
Provisions in Hong Kong and the Republic of China on Taiwan’, 13 UCLA Pac. Basin L.J. 306, 328–9 (1995)
(citing Foreign Lawyers Registration Rules, (1994) Cap. 159 vol. 2, ch. 8, § 12 (H.K.)).
130
These limitations most likely provide the regulatory counterpart to the empirical phenomenon observed
by Professor Silver and her colleagues. An office in another country would not be of much benefit to a US or UK
firm if it were staffed with foreign attorneys who were legally precluded from engaging in any work that impli-
cated local law or legal institutions. Glocalization, in other words, is intricately intertwined with the restrictions
imposed on cross-border legal practice.
131
Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Code Part II: Applying the
CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 345 (1993); Laurel S. Terry, ‘An Introduction to the European
Community’s Legal Ethics Code Part I: An Analysis of the CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 1
(1993).
132 For an in-depth analysis of the development of the legal profession in China, see Ethan Michaelson,
Unhooking from the State: Chinese Lawyers in Transition (2003). With regard to other dimensions of the globali-
zation of law practice, see Jayanth K. Krishnan, ‘Globetrotting Law Firms’, 23 Geo. J. Legal Ethics 57, 87 (2010)
(‘India has no choice but to resist infiltration by UK law firms because they believe the UK has ulterior motives
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extreme example. These holdouts have only been partially successful since foreign invest-
ment almost necessarily presumes legal services by foreign and international law firms.133
They are also coming under increasing pressure from international trade organizations
and agreements to open up to foreign lawyers.134 The pressure, however, also comes with
some reciprocal concessions.135 The United States is yielding, albeit slowly and partially,
to this pressure by allowing foreign lawyers greater access to US legal markets.136
Whatever advances have been made in allowing and regulating in-bound foreign attorneys, 1.61
no national legal system has regulated their own ‘out-bound’ lawyers with the same vigour.
A cynic might hypothesize that this regulatory reluctance is simply a form of protectionism
for local attorneys, or at least a disregard for misconduct that imposes costs in foreign legal
systems but does not affect local legal markets.
Without completely ruling out the more cynical view, the limited institutional capabilities 1.62
of national bar authorities are also inevitably part of the explanation for limited concern over
the foreign conduct of locally licensed attorneys. As noted, even in domestic contexts, there
are serious questions about the effectiveness of discipline and sanctions by bar authorities.137
The institutional limitations that give rise to this critique are amplified in transnational and
international contexts.
Territoriality is the primary basis for political entities to exercise prescriptive jurisdiction. 1.63
In the context of lawyer regulation, the concept of territoriality has traditionally been used
similar to the British East India Company from the seventeenth century.’); Bruce E. Aronson, ‘The Brave New
World of Lawyers in Japan: Proceedings of a Panel Discussion on the Growth of Corporate Law Firms and the
Role of Lawyers in Japan’, 21 Colum. J. Asian L. 45, 52–53 (2007) (the Japanese bar association has historically
resisted integration of foreign attorneys, but pressure from trade negotiations with the United States resulted
in licensing of foreign attorneys).
133 Even in China, where a strong Central Government has asserted itself in most industries, regulation
of transnational legal practice remains ambiguous, and limitations on foreign firms are apparently under-
enforced. See Sida Liu, ‘Globalization as Boundary-Blurring: International and Local Law Firms in China’s
Corporate Law Market’, 42 Law & Soc’y Rev. 771 (2007). This lax regulatory enforcement has allegedly led
to ‘backdoor’ legal activities by foreign attorneys, raising the hackles of local Chinese attorneys who com-
plain that foreign firms were improperly impinging on business that would otherwise go to local lawyers. See
Anthony Lin, ‘Shanghai Bar Association Goes after Foreign Firms’, N.Y. L. J., 16 May 2006, <http://www.
law.com/jsp/llf/PubArticleLLF.jsp?id=1147856732635>. See A. Shankar, ‘Madras HC issues notice in PIL
seeking action against foreign law firms’, Law et al. News, 20 Mar. 2010. Similarly, long after the Bhopal case,
foreign attorneys apparently continue to come into India on tourist visas, which many Indian attorneys claim
violate the restrictions of the Advocates Act of 1961. According to Indian lawyers, who filed a public interest
lawsuit in protest, ‘32 law firms . . . are clandestinely operating in India’. See A. Shankar, ‘Madras HC issues
notice in PIL seeking action against foreign law firms’, Law et al. News, 20 Mar. 2010.
134
Misasha Suzuki, ‘The Protectionist Bar Against Foreign Lawyers in Japan, China, and Korea: Domestic
Control in the Face of Internationalization’, 16 Colum. J. Asian L. 385 (2003).
135 Markets for legal services are a significant trade issue, and remain one of the few areas in which the United
States enjoys a significant trade surplus. ‘The US Department of Commerce Bureau of Economic Analysis esti-
mates that the export of legal services from the United States generated $4.3 billion in receipts in 2005, while
imports of legal services were valued at $914 million, yielding a 4:1 surplus for balance-of-payment accounts.
According to the UK Department of Constitutional Affairs, British law firms generated £1.9 billion in exports
in 2003, compared to £1.5 billion in imports.’ Laurel S. Terry et al., ‘Transnational Legal Practice: 2006–07
Year-in-Review’, 42 Int’l L. 833, 834 (2008).
136
See Laurel S. Terry, ‘The Legal World Is Flat: Globalization and Its Effect on Lawyers Practicing in
Non-Global Law Firms’, 28 Nw. J. Int’l L. & Bus. 527, 529 (2008) (‘[B]etween 1993 and 2003, US exports
of legal services grew 134%, but imports grew 174%.’).
137
See paras 1.67–1.68.
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to determine who ‘can regulate the conduct of persons who appear in . . . courts, maintain
[professional] offices, or conduct other transactions within [a given] territory’.138 While strict
conceptions of territoriality are no longer regarded as a limitation on the exercise of regulatory
jurisdiction by political branches,139 attorneys are not generally regulated by political entities.
1.64 Local bar associations and law societies, most often in conjunction with local courts, are the
primary promulgators and enforcers of professional ethics in most national legal systems.140
These bar authorities often compete for jurisdiction with the bar authorities of other politi-
cal sub-divisions within the same polity.141 In Continental Europe, local bar associations
were historically limited to particular cities or minor political subdivisions. In the United
States, bar authorities continue to operate at the state level. Competition among state bars
has blocked pragmatic efforts to develop national licensing and regulation.142 This competi-
tion among other local bar authorities within a national polity creates what might be called
‘horizontal’ pressure on their exercise of regulatory power.
1.65 In addition to ‘horizontal’ pressure from competing national bar authorities, other politi-
cal entities are also encroaching ‘vertically’ on the power of bar authorities.143 In the
United States and Europe, and to a somewhat lesser degree in other jurisdictions, there has
been a virtual explosion of auxiliary regulation aimed at attorneys. These regulations are
enacted through national legislation, administrative regulations, judicially created rules
(including liability rules), and international agreements. They aim at controlling various
138
Vagts, ‘Professional Responsibility in Transborder Practice’, 689. The second most prevalent basis
for jurisdiction is nationality of the attorneys, or in the case of bar organizations, membership. See Vagts,
‘Professional Responsibility in Transborder Practice’, 689–90 (citing Restatement (Third) Foreign Relations
Law § 402(2) (1987)).
139 See Hannah L. Buxbaum, ‘ Transnational Regulatory Litigation’, 46 Va. J. Int’l L. 251, 273–80 (2006);
Kal Raustiala, ‘The Geography of Justice’, 73 Fordham L. Rev. 2501, 2514–17 (2005).
140
For instance, in France, each of the 180 local bars except for the very smallest has one or more Deontology
Committees, which are composed of elected members of the local bar and have power to promulgate the bar’s
ethical regulations (Réglement Intérieur) and recommend avocats to the local Council (Conseil de l’Ordre) for
disciplinary proceedings. The Council is the only organ that has the power to sanction members for viola-
tions of rules of conduct. See Loi n° 2004-130 du 11 février 2004 réformant le statut de certaines professions
judiciaires ou juridiques, des experts judiciaires, des conseils en propriété industrielle et des experts en ventes
aux enchères publiques [Act No. 2004-130 of 11 Feb. 2004 reforming the status of certain judicial and legal
professions, legal experts, the patent attorneys and experts in public auctions]; Loi n° 71-1130 du 31 décembre
1971 portant réforme de certaines professions judiciaires et juridiques [Law No. 71-1130 of 31 Dec. 1971 on
reforming certain judicial and legal professions] arts. 17 and 22; John Leubsdorf, Man in His Original Dignity:
Legal Ethics in France (2001) 2; Christina Dadomo and Susan Farran (eds.), The French Legal System 2nd edn.
(Sweet & Maxwell,1996) 119–120.
141 Regulation of the legal profession ‘remains local in both scope and administration, often providing little
guidance’. Ronald A. Brand, ‘Professional Responsibility in a Transnational Transactions Practice’, 17 J.L. &
Comm. 301, 302–03 (1998).
142 See Eli Wald, ‘Federalizing Legal Ethics, Nationalizing Law Practice, and the Future of the American
Legal Profession in a Global Age’, 48 San Diego L. Rev. 489 (2011); see William T. Barker, ‘Extra-jurisdictional
Practice by Lawyers’, 56 Bus. Law. 1501 (2001).
143 Historically, most States permitted some form of professional independence. For example, eighteenth-
century Prussia did not, despite significant efforts, absorb advocates completely into the civil service machinery.
See Dietrich Rueschemeyer, ‘Comparing Legal Professions Cross-Nationally: From a Professions-Centered to
a State-Centered Approach’, 11 Am. B. Found. Res. J. 415, 445 (1986). Similarly, the former Soviet Union
made unique allowances for attorneys to work as self-employed professionals in cooperative colleges, a privilege
denied to virtually all other commercial sectors, even if allowances for attorneys were more rhetorical than
actual. See Lawrence M. Friedman and Zigurds L. Zile, ‘Soviet Legal Profession: Recent Developments in Law
and Practice’, 1964 Wis. L. Rev. 32 (1964). More recently, the proliferation of laws that indirectly regulate
attorneys have raised questions about what self-regulation really means. See, e.g., Fred C. Zacharias, ‘The Myth
of Self-Regulation’, 93 Minn. L. Rev. 1147 (2009).
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activities including money laundering, corruption, terrorism, tax evasion, and trade in
legal services.144 Their effect, however, is to erode the foundations of attorneys’ professional
self-regulation.145 As a result, bar authorities—particularly in the United States—are in an
increasingly limited and more defensive posture.146 In light of these horizontal and vertical
constraints on bar authorities, their reluctance to assert a new measure of regulatory power
extraterritorially may be understood as a pragmatic retrenchment in the face of eroding
authority.147
Recent reforms in a few jurisdictions have expressly extended extraterritorially the powers of 1.66
some local bar authorities, and have introduced related choice-of-law guidance for ethical
rules. Instead of opening a new globalized role for bar authorities to accord with globali-
zation of the legal profession, however, in practice these developments emphasize the
institutional limitations of bar authorities in a globalized legal world.
Even in their purely domestic activities, bar authorities are often underfunded and under- 1.67
staffed.148 They are also generally staffed with individuals who have little or no knowledge
or expertise of international or foreign law practice, let alone foreign language competences.
Investigating conduct that occurred in a foreign jurisdiction, in violation of foreign ethical
rules, and in all probability occurred in a foreign language would stretch the competence of
most national bar authorities.149
The limited institutional competences of national bar authorities suggest that they are not 1.68
the optimal choice as the sole, or even primary, source of ethical regulation for attorneys or
144
For an overview of these developments at the international level, see Terry et al., ‘Transnational Legal
Practice’.
145 In many jurisdictions, self-regulation is not part of the local tradition. Instead, ethical rules are promul-
gated through legislative enactment, even if supplemented by ancillary enforcement mechanisms. For example,
in Thailand, China, Egypt, and Turkey the content attorney ethical rules are delineated by statute. In other
jurisdictions, such as Chile, ethical rules are written by professional guilds, but those guilds are voluntary
organizations that can exclude members, but which have no formal regulatory power since membership is not
required for law practice.
146 Ted Schneyer, ‘An Interpretation of Recent Developments in the Regulation of Law Practice’, 30 Okla.
City U. L. Rev. 559, 559–610, 569–70 (2005) (arguing that bar associations ‘continue, often with ABA sup-
port, to resist federal “intrusions” ’ but conceding that ‘they must increasingly content themselves with trying
to influence, rather than staving off, federal initiatives’); Fred C. Zacharias, ‘The Myth of Self-Regulation’,
93 Minn. L. Rev. 1147 (2009) (arguing that there are costs to falsely regarding ‘disciplinary codes as mere
professional self-regulation rather than as one element of an expansive regulatory regime governing the bar’);
John Leubsdorf, ‘Legal Ethics Falls Apart’, 57 Buff. L. Rev. 959, 961 (2009) (arguing that the ideal of attorney
self-regulation has been almost entirely eroded in England). This phenomenon is also occurring in Canada,
England, Australia, and with European regulation.
147 Informal research and anecdotal accounts suggest that most bar authorities do not regard themselves as
having extraterritorial power. See, e.g., ‘20th Annual Workshop of the Institute for Transnational Arbitration:
Confronting Ethical Issues in International Arbitration’, 3:3 World Arb. & Mediation Rev. 363–64 (2009)
(‘[T]here is a parochial view . . . that [Argentinean lawyers] are not prepared at this time to extend to lawyers
practicing abroad our rules because [Argentinean lawyers] do not feel we have jurisdiction.’).
148 See Ronald J. Daniels and Michael Trebilcock, ‘The Political Economy of Rule of Law Reform in
Developing Countries’, 26 Mich. J. Int’l L. 99, 125 (2004) (discussing the lack of resources of Latin American
bar associations); Susan P. Koniak, ‘Corporate Fraud: See, Lawyers’, 26 Harv. J.L. & Pub. Pol’y 195, 215 (2003)
(discussing the inability of underfunded and understaffed bar authorities to regulate lawyers assisting securities
and other types of fraud); Quintin Johnstone, ‘Bar Associations: Policies and Performance’, 15 Yale L. & Pol’y
Rev. 193, 199 (1996) (‘In comparison to large business corporations and many government agencies, the major
comprehensive bar associations’ financial resources are limited.’).
149 In fact, the few examples of investigation of attorney misconduct in the United States have been through
the courts, in connection with parallel cases that are pending.
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arbitrators150 in international arbitration. Many ethical issues ‘generated by the global context’
are ‘not easily amenable to resolution by reference to any single code within the “home” or
“host” jurisdiction’.151 For this reason, commentators have argued that the ‘common expecta-
tion of regulatory control exercised by a professional bar may [need to] be replaced’ by a mech-
anism or combination of mechanisms more adapted to modern global realities.152 While there
have been some preliminary efforts to date, they have been limited in both aim and effect.
2. Efforts at international regulation of transnational legal practice

1.69 In response to the limitations of national bar authorities, one obvious effort has been to
provide guidance for international and transnational practice through international codes
of ethics. There have been literally dozens of attempts, but most fall short of providing clear
guidance and none even attempt to create transnational mechanisms for enforcement.153
The earliest effort was the 1956 IBA International Code of Legal Ethics. In 1977, the CCBE
promulgated the Declaration of Perugia on the Principles of Professional Conduct.154 While
both these efforts were remarkable for their prescience (they were adopted when national writ-
ten codes of ethics were still a new and rare phenomenon), they are most accurately described
as expressing notions of professionalism rather than meaningful ethical guidance.155
1.70 More recent efforts include the IBA ‘Core Values’ Resolution, which began in 1998, and the
IBA General Principles of the Legal Profession of 2011, which includes recently updated and
more detailed commentary.156 The Bar Association Presidents’ Meeting developed in 2005 a
Statement of Core Principles, which was adopted by 100 bar associations from around the
world, and the Union Internationale des Avocats (UIA) developed the Turin Principles in 2002.157
150
Although it may seem strange to talk about bar associations regulating arbitrators, there are some bar
authorities that already do or are contemplating direct regulation of arbitrators who are licensed as attorneys.
For example, Article 55 of the Italian Codice Deontologico Forense specifically requires, among other things,
that Italian lawyers who serve as arbitrators remain independent, disclose certain information about relevant
contacts, and preserve the trust parties have placed in them. Similarly, in the United States, there is a new
proposed Model Rule for Lawyers Acting as Third Party Neutrals, which if enacted would become part of the
Model Rules. See CPR-Georgetown Commission on Ethics and Standards of Practice in ADR, Model Rules
for the Lawyer as Third-Party Neutral (2002), <http://www.cpradr.org/Resources/ALLCPRArticles/tabid/265/
ID/622/Model-Rule-for-The-Lawyer-as-Third-Party-Neutral.aspx>.
151 See Etherington and Lee, ‘Ethical Codes and Cultural Context’, 97.
152 See Etherington and Lee, ‘Ethical Codes and Cultural Context’. Problems with national regulatory
authorities enforcing international or foreign ethical rules are explored in greater detail in Chapter 3.
153 Catherine A. Rogers, ‘Fit and Function in Legal Ethics: Developing a Code of Conduct for International
Arbitration’, 23 Mich. J. Int’l L. 341, 396 (2002); M. McCary, ‘Bridging Ethical Borders: International Legal
Ethics with an Islamic Perspective’, 35 Tex.Int’l L.J. 289, 294 (2000).
154 See The Declaration on the Principles of Professional Conduct of the Bars and Law Societies of the European
Community (1977) [hereinafter Declaration of Perugia]. The Perugia Principles contained only ‘eight brief ethi-
cal pronouncements’, which have been described as an obscure ‘discourse on the function of a lawyer in society’
and ‘the nature of the rules of professional conduct’. See Mary C. Daly, ‘The Dichotomy Between Standards and
Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and
Foreign Lawyers’, 32 Vand. J. Transnat’l L. 1117, 1159 (1999).
155 See Etherington and Lee, ‘Ethical Codes and Cultural Context’, 97.
156 The IBA International Principles on Conduct for the Legal Profession was adopted by the IBA on 28
May 2011. International Bar Association, <http://www.ibanet.org/Publications/publications_IBA_guides_

and_free_materials.aspx>.
157 For a detailed survey of reform efforts to date, see Laurel S. Terry, ‘A “How To” Guide for Incorporating
Global and Comparative Perspectives into the Required Professional Responsibility Course’, 51 St. Louis U.
L.J. 1135, 1153 (2007).
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Regulation of attorneys in international arbitration
While all laudable efforts,158 most operate at a level of abstraction that again provides little
meaningful guidance to the most salient issues that arise in actual international arbitral
practice.159
Most recently, other international efforts have developed a more tailored focus. The CCBE 1.71
developed the Code of Conduct in 1988 (later revised in 2006), which governs European
lawyers.160 The CCBE Code was specifically drafted to provide guidance to attorneys engaged
in cross-border activities in Europe and is arguably the most advanced and successful inter-
national code of ethics to date.161 Even if much more overtly aimed at addressing regulatory
issues than stating general aspirational principles (like those efforts described previously),
the CCBE still does not address a number of the most difficult questions that arise in the
regulation of cross-border practice. Most importantly, the CCBE Code does not resolve con-
flicts between different national ethical regimes that might both apply to particular attorney
conduct; it only suggests that attorneys inform themselves about the rules of other Member
State jurisdictions.162
One feature all these efforts have in common is that they fail to address specific ethical issues 1.72
that are most critical in practice before international tribunals. This omission is interest-
ing because most early regulation of legal professions had a reverse focus—most early codes
focused primarily, if not exclusively, on an attorney’s role as advocate and conduct before
tribunals. As explained in more detail in later chapters, the absence of rules regarding prac-
tice before international tribunals is most likely an implicit nod to the generally recognized
notion that tribunals must develop their own rules specially tailored to their proceedings.163
E. Regulation of attorneys in international arbitration

Advocacy before tribunals is universally assumed to require specialized rules that are par- 1.73
ticular to the relevant tribunal and cannot be developed independently of that tribunal.
This assumption is expressed in various efforts that provide guidance for transnational legal
practice, but leave room for the ethical rules of an international tribunal to govern conduct
before it. For example, Article 2.5 of the IBA General Principles of the Legal Profession of
158 For example, the Statement of Core Principles provides such broad admonitions as: ‘An independent
legal profession, without which there is no rule of law or freedom for the people.’ While obviously an important
principle, absent a meaningful definition of what constitutes ‘independent’ or ‘rule of law’, the general principle
provides little meaningful guidance.
159 Andrew Boon and John Flood, ‘Globalization of Professional Ethics? The Significance of Lawyers’
International Codes of Conduct’, 2 Legal Ethics 29, 55–56 (1999) (arguing that the absence of discourse about
the international codes is a barrier to the globalization of professional ethics); H.W. Arthurs, ‘A Global Code
of Ethics for the Transnational Legal Field’, 2 Legal Ethics 59 (1999) (discussing the difficulties of creating a
universal or global code of ethics and criticizing such codes as ineffective).
160 Charter of Core Principles of the European Legal Profession and Code of Conduct for European
Lawyers (2006), [CCBE Code of Conduct], <http://www.ccbe.org/fileadmin/user_upload/NTCdocument/

EN_Code_of_conductp1_1249308118.pdf>.
161 Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Code Part I: An Analysis of
the CCBE Code of Conduct’, 36–37.

162 Article 2.4 of the CCBE Code of Conduct provides: ‘When practising cross-border, a lawyer from
another Member State may be bound to comply with the professional rules of the Host Member State. Lawyers
have a duty to inform themselves as to the rules which will affect them in the performance of any particular
activity.’
163 See paras 3.23–3.29. The omission, particularly from earlier codes, may also reflect the fact that the
proliferation of international tribunals is a relatively new development.
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2011 states, ‘A lawyer who appears before or becomes otherwise engaged with a court or
tribunal must comply with the rules applied by such court or tribunal.’ In the same vein,
Article 4.1 of the CCBE Code provides ‘A lawyer who appears, or takes part in a case, before
a court or tribunal must comply with the rules of conduct applied before that court or tri-
bunal.’ Similarly, Model Rule 8.5 in the United States instructs that an attorney is bound
by the rules of a tribunal or, in the absence of such rules, the ethical rules of the ‘jurisdiction
in which the tribunal sits’.164 The underlying assumption of each of these approaches is that
tribunals generally have their own rules. The problem with international arbitral tribunals
is that they do not.165
1.74 Recognizing this gap, two more recent efforts have attempted to fill it. On the one hand, the
International Law Association Study Group on the Practice and Procedure of International
Courts and Tribunals drafted the Hague Principles on Ethical Standards for Counsel
Appearing before International Courts and Tribunals (Hague Principles).166 The Hague
Principles are an ‘attempt to articulate common ethical standards for counsel for all inter-
national courts’.167 Notably, however, the Hague Principles expressly disavow application in
commercial arbitration.168 In addition, while attempting to provide general guidance, the
Hague Principles appear to contemplate that they will be supplemented by rules specifically
promulgated by individual tribunals.169
1.75 In another important effort, an International Bar Association Task Force has recently drafted
proposed Guidelines on Party Representation in International Arbitration. These Guidelines
164 The full text of Rule 8.5 is as follows: ‘(a) Disciplinary Authority. A lawyer admitted to practice in this
jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct
occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction
if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the
disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of
Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be
applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the
jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other
conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the
conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall
not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer
reasonably believes the predominant effect of the lawyer’s conduct will occur.’ As analysed in greater detail in
Chapter 9, this rule is problematic as applied to international arbitration because the jurisdiction in which a
tribunal sits is often unrelated to the underlying dispute. Moreover, as described in the pages that follow, the
ethical rules of most jurisdictions do not regard their rules as applying to foreign counsel in locally seated inter-
national arbitrations. See also Chapter 9.
165 See Ucheora Onwuamaegbu, Panel on International Arbitration of Investment/Contract Dispute,
‘Is There a Need for Guidelines for Counsel Participation in International Arbitration?’, State Bar of Texas
International Law Section’s 21st Annual International Law Institute, 6 Mar. 2009, p. 2 (‘Neither the ICSID
Rules nor those of UNCITRAL . . . provide any guidelines for the participation of representatives of parties in
proceedings, including provisions on disclosures or possible disqualification.’).
166 Available at <http://www.ila-hq.org/en/Others/document-summary.cfm/docid/BC922372-0E35-
4E46-8DF149F0F5920E02>.
167 Arman Sarvarian, ‘Common Ethical Standards for Counsel Before the European Court of Justice and
European Court of Human Rights’, 23 Eur. J. Int’l L. 991, 992 (2012).

168
According to Principle 1.2, the Hague Principles only apply to ‘an international arbitral tribunal in a
proceeding in which one or more of the parties is a state’. This definition would include investor-State arbitra-
tion, but not international commercial arbitration, unless it included a State party.
169
The ILA Principles recognize in precatory language ‘that each international court and tribunal has its own
characteristics and functions and that each international court may need to adapt principles to fit its particular
circumstances and practices’. For example, Principle 6.2 states that counsel may engage in pre-testimonial com-
munication with a witness, but ‘subject to such rules as the international court or tribunal may have adopted’.
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are an important milestone in the development of ethical regulation for international

arbitration. As important as they are, the Guidelines for Party Representation are not for-
mally binding, seek to leave so-called manadatory national rules in place, and leave open
essential questions about how they can be meaningfully enforced. As such, by their own
terms, the Guidelines on Party Representation do not seek to displace otherwise applicable
national rules.170
Despite these recent advances, counsel ethics in international arbitration continues to be 1.76
more or less a no-man’s land. This status is not entirely accidental. The ethical void is at least
in part by design. There are two main, inter-related factors that inspire this design. First, even
if not required by the New York Convention, there is a generally acknowledged right to be
represented by counsel chosen by a party. Initially this right was recognized at the interna-
tional level only for criminal defendants.171 That basic procedural right eventually translated
into non-criminal contexts,172 and from there into international arbitration contexts.173 For
example, the English Arbitration Act of 1996 provides that ‘[u]nless otherwise agreed by the
parties, a party to arbitral proceedings may be represented in the proceedings by a lawyer or
other person chosen by him’.174
This first premise about the right to counsel of a party’s own choosing creates a second 1.77
dynamic. To allow parties maximum flexibility in choosing counsel, most jurisdictions effec-
tively exempt foreign attorneys appearing in locally seated international arbitrations from
regulations that otherwise apply to foreign attorneys. This exemption effectively leaves attor-
neys in international arbitration unregulated since, as noted previously, most bar associa-
tions do not expressly or practically extend their regulatory efforts extraterritorially.175 This
Section explores these two aspects of regulation of attorneys in international arbitration.
1. Jurisdictions that seek to attract international arbitration

States compete, often vigorously, to attract international arbitration business.176 Limiting 1.78
or precluding foreign attorneys from appearing as counsel in international arbitrations can
170
The IBA Guidelines for Party Representation are analysed in greater detail in Chapters 3 and 6.
171
The international concept of ‘counsel of choice’ began as a political right that should be guaranteed to
criminal defendants. See International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N.
GAOR, Supp. Np. 16 (Vol. 21), U.N. Doc. A/RES/2200A(XXI), at 14(3)(d) (16 Dec. 1966). It has subse-
quently been recognized more generally as a feature of procedural fairness in any adjudicatory proceeding.
172 For example, the International Court of Justice website explains that ‘there is no special International Court
of Justice Bar, there are no conditions that have to be fulfilled for counsel or advocates to enjoy the right of arguing
before it except only that they must have been appointed by a government to do so’. See International Court of
Justice, How the Court Works, <http://www.icj-cij.org/court/index.php?p1=18p2=6>.
173 In re Certain Solder Joint Pressure Pipe Fittings, CDA-USA-98-1904-03, 2000 WL 1125288 (NAFTA
Binat Panel 3 Apr. 2000) (dismissing a motion to disqualify a non-lawyer from acting as counsel of record for
one of the parties to the review, noting that ‘. . . parties are entitled to be represented by counsel, . . . and to be
represented by counsel of choice. The Tribunal regularly permits parties to be represented by persons other
than lawyers, such as trade consultants, economists and accountants’); Charles N. Brower and Stephan W.
Schill, ‘Regulating Counsel Conduct Before International Arbitral Tribunals’, in Bekker et al. (eds.), Making
Transnational Law Work in a Global Economy: Essays in Honour of Detlev Vagts (2010) 488, 505–06.
174 Arbitration Act, (1996) § 36 (UK).
175 See paras 1.65–1.68, and accompanying text.
176 William W. Park, ‘National Law and Commercial Justice: Safeguarding Procedural Integrity in
International Arbitration’, 63 Tul. L. Rev. 647, 680 (1989) (documenting a ‘scramble among Western European
nations’ to compete for international arbitration business); Sir Michael J. Mustill, ‘Arbitration: History and
Background’, 53 (‘[O]ne must take note of the efforts made by individual nations to make their arbitration
laws . . . more attractive.’).
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force parties to retain different (i.e., local counsel) that would not otherwise be necessary.
As a result, such requirements on foreign counsel are regarded as an act of hostility against
international arbitration and can make a jurisdiction less competitive in attracting arbitra-
tion business. Singapore provides a vivid example.
1.79 In the highly publicized case of Turner (East Asia) Pte. Ltd v Builders Federal (Hong Kong)
Ltd,177 the Supreme Court of Singapore affirmed an injunction prohibiting the US-based
law firm of Debevoise & Plimpton from appearing in international arbitration proceedings
seated in Singapore. The court, applying a broad statutory definition of ‘practice of law,’ rea-
soned that representation in an international arbitration is ‘an act of an advocate or solici-
tor when it is customarily (whether by history or tradition) within his exclusive function to
provide’.178 In response to this decision, ‘most lawyers and businesspeople began avoiding
Singapore as an arbitration venue’ and ‘writing Singapore out of arbitration clauses’.179 As a
result, ‘Singapore’s arbitration business dropped precipitously, going to Kuala Lumpur and
Hong Kong instead’.180
1.80 In the years since Turner, the Singaporean legislature has attempted to ameliorate the
situation through two amendments to the Singapore Legal Profession Act. A July 1992
amendment clarified that Sections 32 and 33 of the Act ‘shall not extend to . . . arbitra-
tion proceedings seated in Singapore in which foreign law governs’.181 A 2004 amendment
repealed Section 35 of the Act to allow foreign lawyers to give advice, prepare documents,
and provide assistance in all Singapore arbitration proceedings.182 Effectively, arbitration
counsel and arbitrators are now permitted a ‘fly-in–fly-out’ option to participate in locally
seated international arbitrations. The happy ending to this cautionary tale is that, after
ensuring that arbitration was open to foreign counsel, ‘Singapore [has] clearly emerge[d] as
the most popular Asian seat’.183
1.81 Japan provides another interesting example of changes in professional regulation to accom-
modate international arbitration. Historically, Japan has imposed both widely applicable
and extremely restrictive policies on foreign lawyers.184 In 1996, however, it passed a law
177
See Turner (East Asia) Pte. Ltd v Builders Fed. (H.K.) Ltd, (1988) 2 MLJ 280 (Sing.).
178
Turner (East Asia) Pte. Ltd v Builders Fed. (H.K.) Ltd, 280.
179
Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 329 n. 114;
David W. Rivkin, ‘Restrictions on Foreign Counsel in International Arbitrations’, XVI Y.B. Comm. Arb. 402,
403–07 (1991).
180
Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 329
n. 114.
181
Statutes of the Republic of Singapore, Legal Profession Act (Cap. 161) § 34A(1)(a) (1994). Michael
A. Polkinghorne, ‘More Changes in Singapore: Appearance Rights of Foreign Counsel’, 22 J. Int’l Arb. 75,
75 (2005); Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 329
n. 114; Michael A. Polkinghorne, Note, ‘The Right of Representation in a Foreign Venue’, 4 Arb. Int’l 333,
334–37 (1988).
182 Polkinghorne, ‘More Changes in Singapore: Appearance Rights of Foreign Counsel’, 76.
183 2010 International Arbitration Survey: Choices in International Arbitration, Sch. of Int’l Arb., Queen
Mary University of London (2010), 20, <http://www.arbitrationonline.org/research/2010/index.html>. The

Survey also attributes the rising success of Singapore to promotional activities and active involvement of more
arbitral institutions. Presumably, these latter developments would not have had much traction were it not for
the opening up of international arbitration matters in Singapore to foreign lawyers.
184
Tadao Fukuhara, ‘The Status of Foreign Lawyers in Japan’, 17 Jap. Ann. Int’l L. 21 (1973), in Hideo
Tanaka (ed.), The Japanese Legal System: Introductory Cases and Materials (1976) 591, 591–607; Chan, Kay-
Wah, Lawyers in Japan: A Profession Caught in the Current of Reforms (2–5 June 2005) (paper presented at the
annual meeting of The Law and Society, J.W. Marriott Resort, Las Vegas, NV).
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02_9780195337693_ch01.indd 46 9/6/2014 9:23:25 AM

permitting foreign attorneys to act as representatives in international arbitrations.185 As a

consequence, international arbitration is the only legal activity in which foreign lawyers are
permitted to engage in Japan.186 To illustrate just how welcoming Japan is for international
arbitration, it has also created special immigration status for foreign attorneys entering for
the purpose of engaging in activities related to international arbitration. Previously, this type
of visa was reserved to domestic workers serving foreign diplomats or consular representatives,
amateur athletes, and volunteer workers.187
Not to be outdone, several individual states within the United States are vying to make them- 1.82
selves a more attractive venue for international arbitration by permitting foreign counsel.
The practice of law in the United States is governed almost entirely by the individual states,
and few states have reciprocity regarding professional licensing. As a result, attorneys must
generally qualify and be licensed by each individual state in which they engage in legal
activities.
Against this background, the California Supreme Court in a now infamous 1998 case con- 1.83
cluded that New York counsel appearing in a domestic arbitration in California were engaged
in the unauthorized practice of law. The court found them guilty of a criminal misdemeanour,
and concluded that they were not entitled to any fees from the relevant representation.188
Although the court also concluded that the prohibition did not apply in international arbi-
tration,189 the decision prompted legislative amendments that do affect international
arbitration. The amendments clarified that, while counsel licensed in other US jurisdictions
could appear in arbitrations in California, foreign-licensed attorneys could not.190 Because
foreign counsel cannot appear to represent their clients, California is often considered an
undesirable seat for international arbitration.191The international arbitration community in
California is lobbying to reform this legislative misstep, but to date it has not prevailed.
Other US jurisdictions, such as New York and Florida, have been more effective at making 1.84
themselves more hospitable to international arbitration.192 New York has determined that
185 Luke Nottage, ‘Japan’s New Arbitration Law: Domestication Reinforcing Internationalisation’, 7 Int’l
A.L.R. 54, 55 (2004) (citing The Special Measure Law concerning the Handling of Legal Practice by Foreign
Lawyers, promulgated as Law No. 65 of 1996 on 12 June 1996, taking effect on 1 September 1996).
186 See Nottage, ‘Japan’s New Arbitration Law’, 59. Notably, there are efforts to open the Japanese legal
market to more foreign attorneys. See Japan Federation of Bar Associations, (2012), 57–64, <http://www.
nichibenren.or.jp/library/en/about/data/WhitePaper2012.pdf>.
187 Global Business Immigration Handbook § 12:17.
188 Birbrower, Montalbano, Condon & Frank, P.C. v Superior Court, 949 P.2d 1 (Cal. 1998).
189 See Birbrower, Montalbano, Condon & Frank, P.C. v Superior Court, 7.
190 See Cal. Code Civ. Pro.§ 1282.4 (1 Jan. 2011); Cal. R. Ct. (2009), R. 9.43(a) (amended and renum-
bered effective 1 Jan. 2007, adopted as Rule 983.4 by the Cal. Sup. Ct., effective 1 July 1999). Notably,
California imposes relatively strict obligations on attorneys licensed in other states, including an obligation to
file a detailed certificate with the State Bar of California and obtain written approval by the arbitral tribunal.
See Cal. Code Civ. Pro.§ 1282.4 (a) and (c). Notably, repeat appearances ‘shall be grounds for disapproval and
disqualification from serving as an attorney in the arbitration in which the certificate was filed’. See Cal. Code
Civ. Pro.§ 1282.4 (d).
191 See David D. Caron and Leah D. Harhay, ‘A Call to Action: Turning the Golden State into a Golden
Opportunity for International Arbitration’, 28 Berkeley J. Int’l L. 497 (2010).

192 For instance, in order to improve New York as an attractive forum for international arbitration, the
New York State Bar Association (NYSBA) recently created a task force to review New York law as an international
standard and the use of New York as a neutral forum for resolving international disputes in arbitration. The task
force’s number one recommendation was in support of establishing a permanent Center for International
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representation in arbitration is not the ‘unauthorized practice of law’, such that both out-of-
state and foreign attorneys can readily participate in arbitrations seated in New York without
being locally licensed.193
1.85 Florida ethical rules also allow attorneys licensed in other US jurisdictions or foreign juris-
dictions to appear in locally seated arbitrations, but affirm that in doing so, they are bound
by Florida ethical rules.194 These were hard-fought changes:
The International Law Section of the Florida Bar worked together with many international
arbitration practitioners in Florida in 2003 in order to promote the promulgation of rules
by the Supreme Court of Florida that clearly allow parties to select counsel of their choice to
represent them in international arbitration proceedings conducted in Florida, regardless of
whether their counsel of choice is admitted to practice in Florida.195
Florida has since used those legislative developments as a basis for affirmatively advertising
itself as an arbitration-friendly jurisdiction.
1.86 This reform is part of a larger effort to ‘establish a strong infrastructure to support and
promote international arbitration in Miami’. According to the website of the Miami
International Arbitration Society:
[T]he State of Florida has enacted targeted legislation and regulations over the course of the
last three decades designed to provide a sound and sophisticated legal framework to promote
international arbitration in Florida. This legal framework includes . . . progressive rules that
permit parties to use their legal counsel of choice to represent them in international arbitration
proceedings conducted in Florida, including counsel from a foreign jurisdiction who is not
admitted to practice law in Florida.196
Arbitration in New York. See NYSBA, ‘State Bar Association Calls for Creation of a Permanent Center for
International Arbitration in New York’ (28 June 2011), <http://www.nysba.org/CustomTemplates/Content.
aspx?id=6590>; NYSBA, Final Report of the New York State Bar Association’s Task Force on New York Law in
International Matters (18 April 2011), <http://www.nysba.org/InternationalReport/>. Florida recently won
a bid to host the International Council for Commercial Arbitration (ICCA) biennial international confer-
ence, and the Florida legislature recently passed a bill standardizing international arbitration rules based
on the UNCITRAL Model Law. See Fla. Stat. Ann. § 684 (West 2010); MIAS Blog, Miami Wins Bid for
ICCA 2014 (31 May 2011), <http://miamiinternationalarbitration.com/blog/?p=11>; Santiago A. Cueto,
‘International Arbitration: Florida Adopts UNCITRAL Model Law, Miami to Benefit the Most’ (20 May
2010), < http://www.internationalbusinesslawadvisor.com/2010/05/articles/international-arbitration/
international-arbitration-florida-adopts-uncitral-model-law-miami-to-benefit-the-most/>.
193 Committee on Professional Ethics of the Association of the Bar of the City of New York, ‘Recom-
mendation and Report on the Right of Non-New York Lawyers to Represent Parties in International and
Interstate Arbitrations Conducted in New York’, 49 Record of the Association of the Bar of the City of New
York 47 (1991).
194
See Rules Regulating the Florida Bar, Rule 1-3.11 (c). (Appearances by Non-Florida Lawyer in an
Arbitration Proceeding in Florida) (lawyers permitted to appear by this rule shall be subject to these rules regulat-
ing the Florida bar while engaged in the permitted representation, including, without limitation, Rule 4-5.5).
195 See Miami International Arbitration Society, ‘Freedom of Choice of Counsel’, <https://miamiinterna
tionalarbitration.com/us/arbitration/arbitration-in-miami/freedom-of-choice-of-counsel>.
196 Miami International Arbitration Society, <https://miamiinternationalarbitration.com/us/arbitration/arbi-
tration-in-miami/overview>. See also Fl. St. Bar R. 1-3.11 (West 2009): (a) Non-Florida Lawyer Appearing in an
Arbitration Proceeding in Florida. A lawyer currently eligible to practice law in another United States jurisdiction
or a non-United States jurisdiction may appear in an arbitration proceeding in this jurisdiction if the appearance is:
(1) for a client who resides in or has an office in the lawyer’s home state; or (2) where the appearance arises out of or
is reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; and (3) the
appearance is not one that requires pro hac vice admission.
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Florida’s approach contrasts with that of New York in that attorneys in Florida-seated arbi-
trations are bound by local ethical rules, whereas they do not appear to be in New York.
A similar approach has been adopted by Korea, which has only recently liberalized its legal 1.87
practice to allow Foreign Legal Consultants. Korea requires that those participating in an
international arbitration in Korea be registered as a Foreign Legal Consultant and, as a con-
sequence, makes them subject to both their home ethical rules and those of the Korean
Bar Association. This approach by Korea, which is similar to Florida’s in that they both
make attorneys in international arbitration subject to local bar rules, is somewhat unique.
Most other States do not expressly impose local ethical rules on lawyers who are appear-
ing in locally seated international arbitrations. Instead, by indicating that local licensing is
not required, other jurisdictions implicitly exempt foreign attorneys from local ethical rules
when appearing in locally seated arbitrations.
2. Jurisdictions historically hostile to foreign lawyers in international arbitration

While most jurisdictions are arbitration-friendly, a few jurisdictions continue to impose 1.88
significant restrictions on foreign lawyers in international arbitration. For example, in
Thailand the Working of Aliens Act apparently prohibits foreign attorneys from appear-
ing in arbitration and, at least according to one scholar, ‘if strictly construed’ it would
also prohibit the attorney from assisting or advising regarding Thai arbitral proceedings.197
More recent sources suggest that foreign lawyers can appear in international arbitrations
as long as Thai law does not govern and Thai courts ‘are not involved in enforcement’.198
Meanwhile, both counsel and arbitrators are advised to obtain work visas in order to enter
Thailand199—there is no ‘fly-in–fly-out’ exemption as in Singapore.
In Chile, meanwhile, restrictions are even more extreme than the now-defunct Singapore 1.89
limitations. Local law requires Chilean nationality to be licensed as a Chilean lawyer. This
provision, combined with a requirement of representation by counsel even in arbitration
proceedings has been interpreted by some commentators as precluding foreign lawyers from
appearing in locally seated arbitration, even if some ambiguities remain.200
The Thai and Chilean limitations can be significant impediments to international arbitra- 1.90
tions seated in those countries. Somewhat surprisingly, however, these limitations are not
very well known, perhaps as a result of the fact that they are under-enforced. As Gary Born
observes, they ‘are notable precisely because they are anomalies that deviate from the inter-
national norm’.201 Two other jurisdictions, however, are notable also because of their size and
197
Christopher Lau and Christin Horlach, ‘Commentary: Arbitration in Asia? Yes—But Where?’ 23-SPG
Int’l L. Practicum 43, 44 (2010); Jahan P. Raissi, Note, ‘Arbitrating in Thailand’, 16 Hastings Int’l & Comp. L.
Rev. 99, 119 (1992). (‘The Working of Aliens Act . . . prohibits the business person’s counsel from presenting a
case before an arbitral tribunal, and if strictly construed, the business person’s or a company’s own counsel can-
not even assist or advise the client regarding Thai arbitral proceedings in general.’)
198
This is an opinion in a still-evolving survey apparently being conducted by the International Bar
Association. Thailand International Trade in Legal Services, <http://www.ibanet.org/PPID/Constituent/Bar_
Issues_Commission/ITILS_Thailand.aspx>. It is ambiguous what enforcement in Thai courts necessarily
means, particularly since in many cases the place of enforcement may not be well-settled when arbitral proceed-
ings are commenced.
199 See Lau and Horlach, ‘Commentary: Arbitration in Asia? Yes—But Where?’, 44.
200
Dyalá Jimenez-Figueres and Angie Armer Ros, ‘Notes on the New Chilean Law on International
Arbitration’, 20-7 Mealey’s Int’l Arb. Rep. News Brief 13, 25–26 (2005) (suggesting that ‘parties to an arbitra-
tion in Chile should include Chilean counsel in their representation as a matter of caution’).
201
See Born, International Commercial Arbitration (2014) 2914.
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importance to global markets and related international disputes. China and India remain the
two most important jurisdictions that restrict lawyers’ practice with respect to international
arbitrations in their territories.
1.91 China is the most important jurisdiction that restricts representation in international arbitra-
tion. China is home to the China International Economic and Trade Arbitration Commission
(CIETAC), the arbitral institution with the largest caseload, at least in terms of number of
cases.202 China prohibits foreign attorneys from issuing any opinions or evaluations of Chinese
law in international arbitrations.203 According to some commentators, it may also prohibit
foreign attorneys from representing parties in CIETAC arbitrations, or at least not without
co-representation with a Chinese attorney.204 To the extent a Chinese attorney is required to
participate, that attorney could not be a member of the same foreign firm because Chinese
attorneys are only permitted to practice in Chinese firms, and those who affiliate with a foreign
firm must forsake their Chinese licence.205 This rule effectively requires parties to an arbitra-
tion that is seated in China or in which Chinese law may apply to retain a Chinese law firm to
appear as co-counsel, or risk imposition of sanctions.206
1.92 If the application of Chinese law to foreign firms has some ambiguities, Indian law has until
very recently been quite clear—they are not welcome! Indian bar associations and courts
have expended tremendous efforts to effectively preclude formal establishment of foreign
law firm offices in India through extensive litigation that has endured for decades. As recently
as July 2010, the head of the Society of Indian Law Firms has underscored this opposition,
stating that ‘The Indian profession will rise up in arms if [foreigners] want to open offices
here’.207 The basis for this opposition, he explained, is a concern that liberalization of the
Indian legal market is regarded as an effort ‘to emasculate the Indian legal community’.208
202
See Dr Nils Eliasson, ‘A Brief Introduction to Arbitration in Hong Kong’, 23-SPG Int’l L. Practicum
46, 49 (2010). (Chinese law may still prohibit foreign registered lawyers from representing parties in CIETAC
arbitration in mainland China without being accompanied by a Chinese attorney, as part of a general prohibi-
tion against foreign attorneys interfering with ‘Chinese legal affairs’.)
203 Waiguo Lushi Shiwusuo Zhuhua Daibiao Jigou Guanli Tiaoli (外国律师事务所驻华代表机构管理条例)
[Rules on Implementation of the Regulations on the Administration of Foreign Law Firm Representative Offices
in China] (promulgated by the State Council, 19 Dec. 2001, effective 1 Jan. 2001), art. 32(4) defined ‘China
Legal Business’ to include addressing the application of Chinese law and the issuance of opinions or evaluations
of Chinese law as agent in international arbitrations. Article 32(4) was narrowed by a decision of the Ministry of
Justice, which prohibited representatives of foreign law firms from commenting in the capacity of agent on the
application of Chinese law. In the Reply to the Letter Submitted by CIETEC on Recommendations Related to
‘the Rules on Implementation of the Regulations on the Administration of Foreign Law Firm’s Representative
Offices in China by the Ministry of Justice’, the Ministry of Justice provided an explanation on the revisions as
follows: ‘Basically, local co-counsel is needed for questions of Chinese law but foreign law firm representatives
may nevertheless serve as agent in international arbitrations in China. These regulations have no force outside
China because foreign lawyers are not acting as representatives of foreign law firm representative offices in
China.’ Lester Ross of Wilmer Hale, email of 5 Aug. 2010.
204
Nils Eliasson, ‘A Brief Introduction to Arbitration in Hong Kong’, 49.
205
For an in-depth analysis of the development of the legal profession in China, see Ethan Michaelson,
Unhooking from the State: Chinese Lawyers in Transition (2003).
206
Sida Liu, ‘Globalization as Boundary-Blurring: International and Local Law Firms in China’s Corporate
Law Market’, 42 Law & Soc’y Rev. 771, 783–84 (2008) (discussing sanctions imposed by the Chinese Ministry of
Justice on Beijing-based foreign lawyers representing clients in an international arbitration case in China in 2005).
207
‘Law and globalization: Not entirely free, your honour’, Economist, 29 July 2010.
208
See ‘Law and globalization: Not entirely free, your honour’, Economist, 29 July 2010. In an ironic twist, as the
Indian legal market remains formally closed to foreign law firms, it is itself infiltrating foreign legal markets by soaking up
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Indian lawyers characterize efforts by foreign firms to open offices as an effort to colonize the
Indian legal market, which they claim is evidenced by ‘repeated patronizing, condescending
language from foreign law firms regarding the inadequacies of Indian lawyers’.209
As a delayed response to the Bhopal plaintiffs’counsel solicitations, Indian lawyers complain 1.93
that foreign attorneys apparently continue to come in on tourist visas and evade the restric-
tions of the Advocates Act of 1961.210 These complaints recently manifested themselves in
an aggressive lawsuit, alleging that ‘32 law firms . . . are clandestinely operating in India’.211
The Madras High Court finally issued a pragmatic opinion in February 2012, which has par-
ticularly salutary effects for international arbitration. Citing ‘national interest’ and reasoning
that an across-the-board prohibition on foreign lawyers ‘would be a far-fetched and danger-
ous proposition’ and ‘a step backward’,212 the Madras High Court concluded that foreign
attorneys could fly in and fly out, for example, to represent parties in international arbitra-
tion. The Madras High Court is one of several state high courts, but it has concurrent writ
jurisdiction with the Indian Supreme Court under Articles 32 and 226 of the Constitution
of India. As a result, the Madras High Court decision applies throughout India, subject only
to possible appeal to the Indian Supreme Court.
Despite the favourable ruling from the Madras High Court, not all is well for international 1.94
arbitration in India. A separate legal action instituted by the same group as the Madras action
has successfully petitioned the High Court of Delhi, which is in a different Indian State, to
issue notice to the New Delhi branch of the LCIA to remove the word ‘London Court’ from
its name.213 The status of this lawsuit remained uncertain as this book was going to print,214
and there are efforts underway to make India more international arbitration-friendly. One
sign of progress is that, in August 2013, the LCIA India administered its first arbitration and
its future now seems assured as a fixture in the Indian legal market.215
outsourced legal services. Mary C. Daly and Carole Silver, ‘Flattening the World of Legal Services? The Ethical
and Liability Minefields of Offshoring Legal and Law-Related Services’, 38 Geo.J. Int’l L. 401, 404–05 (2007).
209 See Krishnan, ‘Globetrotting Law Firms’, 60.
210 See ‘Madras HC issues notice in PIL seeking action against foreign law firms’, Law et al. News, 20/3/2010,
<http://lawetalnews.com/NewsDetail.asp?newsid=774>.
211
See ‘Madras HC issues notice in PIL seeking action against foreign law firms’.
212 The Madras Court was correct that the Indian legal profession’s protectionism backfired. Instead of pre-
serving the representation of parties in Indian arbitrations for Indian lawyers, it has resulted in an off-shoring
of arbitration—parties that might otherwise arbitrate in India instead seat their arbitrations in Singapore, or
elsewhere.
213 See Soibam Rocky Singh, ‘Delhi HC Issues Notice on Working of London Court of International
Arbitration in Delhi’, Law et al. News, 31 May 2011, <http://www.lawetalnews.com/NewsDetail.asp?newsid=

4087>. For an interesting analysis of the history of legal services and current regulatory climate in India, see
Krishnan, ‘Globetrotting Law Firms’.
214 A month after the alleged notice, the LCIA had yet to receive a summons and no papers had been filed at
the LCIA India registrar by the court or plaintiffs. See Ben Lewis, ‘Indian Arbitration: The Road Less Traveled’,
Law.com (20 June 2011), <http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=12024978742798slretur
n=1>; Sebastian Perry, ‘LCIA faces lawsuit in India’, Global Arb. Rev. (3 June 2011), <http://www.globalar
bitrationreview.com.ezaccess.libraries.psu.edu/news/article/29518/lcia-faces-lawsuit-india/>.
Moreover, many Indian arbitration specialists question the seriousness of the lawsuit. See Edward Machin,
‘LCIA India told to change name by Delhi lawyers’, <http://www.cdr-news.com/arbitration-and-adr/112-
articles/1120-lcia-india-told-to-change-name-by-delhi-lawyers>.
215
See Prachi Shrivastava, ‘LCIA yet to bag 10th case as high-powered Hiranandani arbitration
resolved with Cherie Blair’; AP Shah, ‘Karanjawala’, Legally India (8 Aug. 2013), <http://www.legallyindia.
com/201308083898/Litigation/3-year-old-lcia-still-to-get-its-10th-dispute-resolves-hiranandani-feud-with-
karanjawala-pepper-hamilton>.
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1.95 The obstacles for international arbitration that exist in India, as well as those in Thailand,
Chile, and China, are generated by fears that globalization of the legal profession will harm
local law firms. These protectionist measures, therefore, bring the discussion back to the
demographics of globalization of law firms more generally.
3. Demographics in global and international arbitration practice

1.96 It is not surprising that international arbitration practice is dominated by Anglo-American
mega-firms and established Continental practitioners since those were the first movers in
globalization of the legal profession more generally. Because of their size, Anglo-American
firms were uniquely well-positioned to expand internationally.
1.97 The arrival of US- and UK-based law firms has had significant effects on local markets.
For example, France opened its legal market to foreign firms in the 1970s, and Germany
in 1998. By 2005, there were only four French-owned law firms among the top 25 firms
in France, and ‘eight of the top 10 law firms in Germany were operated by US and UK law
firms’.216
1.98 In other local legal markets, particularly emerging economies, foreign firms often domi-
nate international work.217 While these developments have fuelled concerns like those
expressed by Indian lawyers, it would be too simple to dismiss them as a neocolonialist
effort to entrench American and British law firm hegemony.218 The scene is much more
complex. As a starting point, particularly in international arbitration, as analysed in Section
2 (‘Jurisdictions Historically Hostile to Foreign Lawyers in International Arbitration’),
excluding foreign lawyers from participating in locally seated international arbitrations
does not protect local law firms. Instead, foreign parties and counsel avoid that jurisdiction
as a seat for arbitration and the ultimate result is a reduction in arbitration business for
local legal service providers. Even if local firms are not the primary counsel in international
arbitrations, locally seated arbitration can be good for the local economy, including for
local lawyers, who may consult on issues of local law or become involved if there is a need
to petition local courts.
1.99 The arrival of foreign mega-firms may also be good news for local attorneys for other reasons.
Recent empirical research suggests that the arrival of mega-firms has not necessarily, or at
least not only, displaced local attorneys. With the exception of a few unique jurisdictions like
216
Kyungho Choi, ‘Korean Foreign Legal Consultants Act: Legal Profession of American Lawyers in South
Korea’, 11 Asian-Pac. L. & Pol’y J. 100, 104 (2010) (internal citations omitted); see also John E. Morris,
‘Germany Invaded!’ Am. Law., Sept. 2000, 32.
217
Until relatively recently, the explanation was that local law firms could not provide the services
desired by foreign investors in certain sectors. See Geoffrey C. Hazard Jr. and Angelo Dondi, Legal Ethics: A
Comparative Study, 56 (noting that China ‘wanted to expand its legal profession at a rapid rate, but [lacking]
the university apparatus and cadres of graduates to do so[,] . . . has admitted people with basic literacy and
substantial experience in practical office affairs to the profession of lawyer’); Eliasson, ‘A Brief Introduction to
Arbitration in Hong Kong’, 49; Andrew Godwin, ‘The Professional “Tug of War”: The Regulation of Foreign
Lawyers in China, Business Scope Issues and Some Suggestions for Reform’, 33 Melb. U. L. Rev. 132, 143
(2009) (‘[I]n the early 1990s . . . there were no local law firms with a national presence within China, let alone
firms with an overseas presence, that could compete successfully with international law firms in the lucrative
foreign direct investment (FDI) market.’).
218 See Yves Dezalay and Bryant G. Garth (eds.), Global Prescriptions: The Production, Exportation and
Importation of a New Legal Orthodoxy (2002); Krishnan, ‘Globetrotting Law Firms’, 60 (2010).
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Brussels and Hong Kong, the majority (around two-thirds)219 of attorneys who staff overseas
offices of US-based law firms apparently have their primary legal education and licensing
outside the United States.220 Somewhat more surprisingly, only 9% of these local attorneys
staffing foreign offices are admitted both in and outside the United States, and only a third
of these attorneys have any US legal education, either a J.D. or LL.M.221 In other words,
the primary growth of multinational law firms in foreign markets has been through hir-
ing local attorneys, usually without requiring that they have substantive expertise or other
professional ties to the United States. This staffing appears to be equally if not more true of
international arbitration practice groups.
These statistics suggest that globalization of law firms may not so much be a neo-colonialist 1.100
invasion into local legal markets,222 as feared by the Chinese and Indian opposition to foreign
firms. Instead, it may indicate a process of ‘glocalization’.223 Under this view, mega-firms
adapt to foreign local marketplaces through attorneys who have local legal culture and train-
ing, with relatively few foreign attorneys functioning as liaisons with the ‘home’ firm.224 In
Brazil, even if some concerns remain about foreign firms ‘com[ing] in and steal[ing] all the
sweets’, they are also described as ‘fueling a red-hot jobs market for locals’, at least for ‘ambi-
tious young attorneys’ who can earn ‘higher pay and faster promotion’ than at local firms but
‘at the expense of the old guard’.225
These demographics are both the background against which global arbitration practice 1.101
developed, and a catalyst for developments within international arbitration. For example,
the so-called ‘Americanization’ of international arbitral procedure226 is undoubtedly a
reflection of the dominance of US (and to some extent UK) firms in the largest interna-
tional arbitrations. Similarly, the oft-noted under-representation of minority and female
arbitrators, particularly in investment arbitration and in the largest commercial arbitration
disputes, may be viewed as at least partially attributable to the severe shortage of diverse and
female partners with significant seniority in global law firms.227
219
Robert L. Nelson, ‘Are We There Yet? Empirical Research and the Predicted Demise of Large Law Firms:
An Introductory Essay’, 22 Geo. J. Legal Ethics 1249, 1254–55 (2009).
220 Carole Silver et al., ‘Between Diffusion and Distinctiveness in Globalization: US Law Firms Go Glocal’,
22 Geo. J. Legal Ethics 1431, 1448–51 (2009).

221 Silver et al., ‘Between Diffusion and Distinctiveness in Globalization’, 1450.
222 Several scholars argued that: Steven Mark, ‘Harmonization or Homogenization? The Globalization of
Law and Legal Ethics—An Australian Viewpoint’, 34 Vand. J. Transnat’l L. 1173, 1179–80 (2001); Susan
Marks, ‘Empire’s Law’, 10 Ind. J. Global Legal Stud. 449, 451–52 (2003).
223 See Silver et al., ‘Between Diffusion and Distinctiveness in Globalization’, 1433. This conclusion does
not take into account the allocation of administrative power or profits as among so-called ‘local’ partners
and partners in the home country. While employment in branches of multi-national firms may pay at the
high end or above the compensation level of top local firms, foreign attorneys employed in foreign offices are
often paid less than those in UK or US offices where the firm originates. One reason for this pay differential
can be the lower cost of living in most jurisdictions outside London, New York, and other hubs of multi-
national firms.
224 Silver et al., ‘Between Diffusion and Distinctiveness in Globalization’, 1433.
225 ‘Keep Out: Brazilian lawyers don’t want pesky foreigners poaching their clients’, The Economist, <http://
www.economist.com/node/18867851> (23 June 2011).

226
See paras 9.52–9.53.
227 Lucy Greenwood and C. Marc Baker, ‘Getting a Better Balance on International Arbitration Tribunals’,
28(4) Arb. Int’l 653 (2012) (‘A major cause of the under-representation of women on international arbitra-
tion tribunals is the lack of women making it thorough to the upper eschelons of the legal profession.’). This
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1.102 On the other hand, the ‘regionalization’ and diversification of international arbitration,
noted previously,228 signals that international arbitration cannot expand into new markets
without bringing into its fold lawyers and arbitration professionals from those markets. For
example, the management of the new LCIA India is made up of Indians, and the arbitrators
in the first arbitration under the auspices of the LCIA involved the Chief Justice of the Indian
Supreme Court, in addition to two prominent women arbitrators from the UK and US.229
The arrival of new players brings diverse legal cultures and professional skills that contrast
with those of major, established, multi-national law firms. While contributing to diversity,
these new players have also brought to the fore new ethical issues and highlighted the absence
of meaningful regulation in international arbitration.
1.103 Looking to the future, the most significant culture gap in international arbitration may turn
out to be between practitioners at multi-national firms, of whatever nationality, and practi-
tioners at smaller regional or national firms. Large, multi-national law firms provide internal
training, as well as internal management protocols and procedures, that establish standards
for practice that are often tied to those of the firm’s home office. They are more likely to have
specialized practice groups that focus exclusively on international arbitration.
1.104 As the number of regional arbitration outposts and the number of smaller and medium-sized
arbitral disputes grow, the size and hemogeny of international arbitral practice will also con-
tinue to expand. International arbitration has, in its past, managed to absorb new players
and adapt to market transitions. It is facing similar challenges again today with respect to
professional regulation of its various participants.
F. Conclusion
1.105 Professional regulation of attorneys was traditionally based on a model of a local licensure
and local discipline of locally produced rules for attorneys engaged in local law practice. The
globalization of law practice has forced national bar authorities to reconsider this old model
in light of an influx of foreign lawyers operating within their jurisdictions and, more recently,
the activities of locally licensed attorneys abroad, including before international tribunals.
As with various other industries, however, local and national regulatory bodies and the rules
they promulgate are tailored to local and national legal contexts. They are ill-equipped to
regulate attorneys who operate on a wholly transnational plane, such as multi-national,
multi-jurisdictional international arbitration practitioners. In their professional activities, an
Indian attorney practising in the international arbitration group of a Singaporean law firm,
a Brazilian attorney practising in an international arbitration group in the Geneva branch of
an English law firm, and a Lebanese attorney practising in the Paris office of a US law firm’s
international arbitration practice all have much more in common with each other than they
do with lawyers licensed in their home jurisdictions who practise primarily domestic law.
The nature of their professional activities in international arbitration transcend national
observation suggests that, as women get further in the law firm pipeline, the number of arbitral appointment
for women may increase. Nevertheless, other more subtle obstacles undoubtedly also exist, such as unconscious
gender bias. See Greenwood and Baker, ‘Getting a Better Balance on International Arbitration Tribunals’, 662.
228 See paras 1.28–1.34.
229 See Prachi Shrivastava, ‘LCIA yet to bag 10th case as high-powered Hiranandani arbitration resolved
with Cherie Blair’; AP Shah, ‘Karanjawala’.
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Conclusion
borders. They have little relationship to the ethical rules that were designed to regulate legal
activities within those borders. They are, it may be said, a new ‘International Arbitration
Bar’. It is time they be regulated as such.
Regulating attorneys within international arbitral procedures and institutions may seem like 1.106
a daunting challenge. Compared to improbable creation and tremendous evolution of the
international arbitral regime, however, it may seem like a more modest goal. Whatever the
measure, regulation of attorneys is an essential predicate to regulation of third-party funders
and expert witnesses.
When the international criminal law community confronted the obvious need for inter- 1.107
national ethical regulation, the International Criminal Tribunal for the Former Yugoslavia
(and other international courts) delegated the issue to special administrative bodies. These
entities drafted and implemented codes of conduct, established procedures, and desig-
nated personnel to administer it.230 The ‘International Criminal Bar’ took these steps
because they realized international criminal justice could not function effectively and
legitimately without professional regulation of those managing and participating in its
proceedings.
The development of a fully functioning ethical regime for international arbitration, 1.108
however, presents distinct challenges from those faced by the international criminal law
regime. In contrast to international criminal tribunals, international arbitration is a decen-
tralized and highly diversified network of ad hoc tribunals. Its most visible and long-standing
entities, arbitral institutions, have no formal or legal relationship to each other. States are
intentionally cordoned off from arbitral proceedings and inter-connected only through treaty
obligations to enforce agreements and awards. For the reasons described earlier, national bar
authorities and legislatures are ill-equipped to step in, but unlike international criminal law,
there are no public international bodies to which the power to promulgate binding ethical
rules can readily be delegated. International arbitration, in other words, presents unique
challenges for ethical regulation.
The project of the remaining chapters of this book is not to suggest definitive answers about 1.109
how to meet all of these challenges. It is instead to document the existing challenges in the
next four chapters, and propose conceptual and theoretical frameworks for answering those
challenges in an overall regime of self-regulation in the remaining chapters. Despite dis-
claiming aspiration to a definitive master plan, and conceding that it leaves many questions
unanswered, this book makes a number of specific proposals. Many elements of the propos-
als build on features that already exist in international arbitration practice. Others will not
be immediately feasible, but are instead long-term goals that will hopefully materialize for
arbitration in the next 20 years. And still other proposals may be contested, or ultimately
even prove unworkable. Debating, contesting, negotiating, and experimenting with various
approaches is a healthy, and even essential, part of the process of developing and implement-
ing ethical regulation.
230 See Rogers, ‘Lawyers Without Borders’, 1078–79; Judith A. McMorrow, ‘Creating Norms of Attorney
Conduct in International Tribunals: A Case Study of the ICTY’, 30 B.C. Int’l & Comp. L. Rev. 139 (2007).
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1.110 Ultimately, the challenge of ethical self-regulation is a challenge for the international arbi-
tration community to think beyond its present situation, to future generations and future
developments in an ever-more globalized legal world. It is a challenge for international
arbitration to bring to bear all the pragmatism, creativity, and sense of the noble duty to
transnational justice that it has demonstrated in the very best moments of its history. In
sum, it is a challenge for international arbitration to reconstitute Schachter’s Invisible
College to redress the modern problems of international arbitration’s ethical no-man’s
land.
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3
ATTORNEYS, BARBARIANS,
AND GUERRILLAS
What they are not familiar with[,] people call barbarian.

Montaigne
The conventional army loses if it does not win.

The guerrilla wins if he does not lose.
Henry A. Kissinger
The topic of attorney ethics in international arbitration is fraught with uncertainty. As 3.01
described in Chapter 1, in the absence of international standards, most attorneys rely on back-
ground assumptions based on their own national standards about what constitutes proper
conduct.1 These ethical assumptions are usually based on attorneys’ education, legal train-
ing, and professional acculturation and experience.2 The problem in international arbitral
proceedings is that what is perfectly acceptable in one system may be regarded—to borrow
Montaigne’s term—as ‘barbarian’ by attorneys, parties, or arbitrators from another system.
Examples of these cultural conflicts abound. Back when the US practice of cross-exami- 3.02
nation was not commonly accepted in international arbitration, it was called ‘barbaric’,
‘primitive’, and even unethical by Continental practitioners.3 Typical US techniques for
1
Paul A. Crotty and Robert E. Crotty, ‘Ethical Conduct in Arbitration’, in Robert L. Haig (ed.), Business
and Commercial Litigation in Federal Courts, Volume Four, 3rd edn. (2011) § 48:57 (‘Counsel are subject to the
professional conduct requirements of the courts of the country where they are admitted. Determining whether
and to what extent those requirements apply in international arbitration, however, is no easy task. There is no
uniform code of ethics for counsel in international arbitration, and counsel from different countries will likely
have different ethics practices.’).
2
Philip S.C. Lewis, ‘Comparison and Change in the Study of Legal Professions’, in Richard L. Abel and
Philip S.C. Lewis (eds.), Lawyers in Society, Volume Three: Comparative Theories (1989) 27, 32 (‘Every legal sys-
tem will have theories of the legal profession, which usually can be deduced from their rules governing lawyers
or describing proper representation.’); John C. Reitz, ‘Why We Probably Cannot Adopt the German Advantage
in Civil Procedure’, 75 Iowa L. Rev. 987, 994 (1990) (‘[T]he “dutiful” attorney is obviously a culturally spe-
cific standard.’). See also Roger J. Goebel, ‘Professional Qualification and Educational Requirements for Law
Practice in a Foreign Country: Bridging the Cultural Gap’, 63 Tul. L. Rev. 443, 520–2 (1989).
3 Yves Dezalay and Bryant Garth, ‘Merchants of Law as Moral Entrepreneurs: Constructing International
Justice from the Competition for Transnational Business’, 29 Law & Soc’y Rev. 27, 53 (1995); see also Patrick
Thieffry, ‘European Integration in Transnational Litigation’, 13 B.C. Int’l & Comp. L. Rev. 339, 356–7 (1990)
(‘US-style procedural rules, the absence of which US litigants tend to criticize in European courts, are precisely
those considered to be the most outrageous by European litigants in US courts.’). Arbitrators trained in the civil
law tradition are often not familiar with or accustomed to cross-examination techniques and regard such efforts
‘as embarrassing (if not barbaric) for a witness to be subjected to attack at an arbitration hearing’. See Alan Redfern
and Martin Hunter, Law and Practice of International Commercial Arbitration, 3rd edn. (2004) § 6–115; John
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Attorneys, Barbarians, and Guerrillas
‘preparing’ witnesses are still referred to as ‘daring’ and certain varieties still constitute ‘fla-
grant misbehaviour’, at least according to some leading Continental arbitrators.4 US-style
document production is described as ‘outrageous’,5 and US-style contingency fees as simply
‘bad’.6 American attorneys, meanwhile, grumble about foreign attorneys’ alleged bad faith
non-compliance with document requests, improper failure to correct perjurous testimony
by witnesses, and a lax attitude toward conflicts of interest.
3.03 In dealing with these various cultural conflicts, modern international arbitration has done a
remarkable job of harmonizing some of the most important procedural differences between
national legal traditions.7 There is now general agreement, for example, regarding the avail-
ability in international arbitration of cross-examination8 and of some minimal-level docu-
ment exchange.9 These and other procedural innovations, however, have revealed ethical
differences between lawyers from different systems and, in some instances, created new
ethical conflicts. International arbitration has been slower and less effective at responding to
these ethical conflicts.10
3.04 Some international standards have been developed to redress particular ethical conflicts. For
example, pre-testimonial communication with witnesses is now generally considered accept-
able in international arbitration. These efforts have only addressed a few specific issues, and
thus are limited in both reach and effect. Moreover, the relationship between these new
ethical norms and national ethical rules is not always certain.11 As a result, counsel ethics in
international arbitration remains largely an ethical no-man’s land and the ability to enforce
supposedly applicable rules remains elusive.
M. Townsend, ‘Clash and Convergence on Ethical Issues in International Arbitration’, 36 U. Miami Inter-Am.
L. Rev. 1, 5 (2004) (noting that ‘cross-examination [was] considered unethical . . . [under] the view of some
opponents of the practice’); Pierre Karrer, ‘The Civil and Common Law Divide: An International Arbitrator
Tells It Like He Sees It’, 63 Disp. Resol. J. 72, 77 (2008).
4 See Hans Van Houtte, ‘Counsel-Witness Relations and Professional Misconduct in Civil Law Systems’,
19 Arb. Int’l 457, 461 (2003).

5 See Patrick Thieffry, ‘European Integration in Transnational Litigation’, 13 B.C. Int’l & Comp. L. Rev.
339, 356–7 (1990) (‘US-style procedural rules, the absence of which US litigants tend to criticize in European
courts, are precisely those considered to be the most outrageous by European litigants in US courts.’).
6
Henri Ader, ‘Differences and Common Elements in Legal Ethics in France and the United States’, in John
J. Barceló III and Roger C. Cramton (eds.), Lawyers’ Practice & Ideals: A Comparative View (1999) 351, 359.
Thomas Starkey, a sixteenth-century reformer, denounced the common law as ‘barbaric’ and hoped ‘to see it
replaced by the systematic Roman law of the Italian schools or at least reduced to codified order’. G.R. Elton,
Reform and Reformation (1977) 167.
7 See Serge Lazareff, ‘International Arbitration: Towards a Common Procedural Approach’, in Stefan N.
Frommel and Barry A.K. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old Issues and New
Trends (1999) 31, 31 (noting an increasing awareness among both arbitrators and practitioners of ‘an emerging
“harmonised procedural pattern” in international arbitration’).
8 Andreas F. Lowenfeld, ‘Introduction: The Elements Of Procedure: Are They Separately Portable?’ 45 Am.
J. Comp. L. 649, 654 (1997) (‘By now, cross-examination by counsel is pretty well accepted in international
arbitrations, and for the most part the continental lawyers have learned how to do it. Moreover, and almost as
important, arbitrators have learned how to administer cross-examination.’); Julian D.M. Lew and Laurence
Shore, ‘International Commercial Arbitration: Harmonizing Cultural Differences’, 54 Disp. Resol. J. 32, 34–5
(1999) (noting that when cross-examination is permitted in arbitrations, attorneys are encouraged, through
strict time limits, to focus their questioning on the most important issues).
9 See Andreas F. Lowenfeld, ‘Introduction: The Elements of Procedure: Are They Separately Portable?’ 45
Am. J. Comp. L. 649, 654–5 (1997) (arguing that lessons learned in international arbitration can aid in refining
national and international adjudicatory techniques and procedures).
10
The reasons for the different pace of innovation are explored in greater detail in paras 3.08–3.09.
11
See paragraphs 1.06–1.07 for a description of survey addressing these issues.
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Ethical uncertainty creates a potential trap for even the most well-intentioned participants 3.05
acting in good faith. Increasingly, however, it also provides fertile ground for less scrupu-
lous participants to engage in ‘guerrilla tactics’.12 In a recent survey, 68% of respondents
reported that they had experienced what they believed were guerrilla tactics in international
arbitration.13 The study did not define ‘guerrilla tactics’ because the authors posited that
‘what needed to be discovered is whether counsel and arbitrators felt such tactics were being
used and to learn what kinds of tactics they felt deserved to be labelled “guerrilla tactics” ’.14
In fact, conduct that some attorneys identify as ‘guerrilla tactics’ may be defended as case
legitimate strategy by others. Would-be guerrillas are enabled by the absence of a common
yardstick for evaluating attorney conduct and emboldened by the absence of sanctions or
enforcement mechanisms.
Long pre-dating these modern concerns, in 1971, Professor Michael Reisman recognized 3.06
that counsel in international arbitration needed to be regulated at an international level.15
A few early scholars echoed Professor Reisman’s initial call.16 It was not until 2002 that obser-
vations about a general need began to translate into specific proposals for reform.17 In more
12
See Michael Hwang, ‘Why is there Still Resistance to Arbitration in Asia’, in Gerald Aksen et al. (eds.),
Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicororum in honour of
Robert Briner (2005) 401, 401–5; Stephan Wilske, ‘Crisis? What Crisis?: The Development of International
Arbitration in Tougher Times’, 818 PLI/Lit 309, (2010).
13
Edna Sussman and Solomon Ebere, ‘All’s Fair in Love and War—Or Is It? Reflections on Ethical Standards
for Counsel in International Arbitration’, 22 Am. Rev. Int’l Arb. 611, 612 (2011).
14
Sussman and Ebere, ‘All’s Fair in Love and War’ 612.
15
See W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and
Awards (1971) 116–7.
16
See Detlev F. Vagts, ‘The International Legal Profession: A Need for More Governance?’ 90 Am. J. Int’l
L. 250, 250 (1996) (describing problems in Iran Claims Tribunal caused by lack of ethical consensus among
attorneys); Jan Paulsson, ‘Standards of Conduct for Counsel in International Arbitration’, 3 Am. Rev. Int’l
Arb. 214 (1992) (stating that national ethical rules of counsel may conflict in international practice); Edward
R. Leahy and Kenneth J. Pierce, ‘Sanctions to Control Party Misbehavior in International Arbitration’, 26 Va.
J. Int’l L. 291, 293 (1986) (stating that party misconduct is increasing and recommending several means of
controlling counsel and party misbehaviour in international commercial arbitration); see also V.V. Veeder, QC,
‘The 2001 Goff Lecture: The Lawyer’s Duty to Arbitrate in Good Faith’, 18 Arb. Int’l 431 (2002) (discuss-
ing the international lawyer’s duty of good faith and the possibility of implementing more concrete attorney
behavioural standards). These works built on an already robust body of literature about the need to regulate
global legal practice more generally. See Detlev F. Vagts, ‘Professional Responsibility in Transborder Practice:
Conflict and Resolution’, 13 Geo. J. Legal Ethics 677 (2000) (discussing methods of harmonizing international
ethical standards); Detlev F. Vagts, ‘The Impact of Globalization on the Legal Profession’, 2 Eur. J. L. Reform
403, 410–1 (2000) (discussing the lack of ethical standards or overseeing body in international arbitration);
Mary C. Daly, ‘The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences
in Perceptions of Lawyer Codes of Conduct by US and Foreign Lawyers’, 32 Vand. J. Transnat’l L. 1117, 1154
and n. 184 (1999) (describing ethical conflicts in the Yugoslav War Crimes Tribunal); Robert M. Jarvis, ‘Cross-
Border Legal Practice and Ethics Rule 4-8.5: Why Greater Guidance Is Needed’, 72-FEB Fla. B.J. 59 (1998)
(suggesting amending Florida Rules of Professional Conduct Rule 4-8.5 to clarify cross-border practitioners’
ethical obligations); Malini Majumdar, ‘Ethics in the International Arena: The Need for Clarification’, 8 Geo.
J. Legal Ethics 439, 451–2 (1995) (proposing an international code of ethics for all GATT signatory coun-
tries based on the CCBE Code and IBA Rules); John Toulmin, ‘A Worldwide Common Code of Professional
Ethics?’ 15 Fordham Int’l L.J. 673, 685 (1992) (discussing application of an international ethical code in the
US based on the CCBE code); Hans Smit, ‘The Future of International Commercial Arbitration: A Single
Transnational Institution?’ 25 Colum. J. Transnat’l L. 9, 29 (1986) (proposing an international arbitration
institution that could establish an international code of ethics for arbitrators).
17 Catherine A. Rogers, ‘Fit and Function in Legal Ethics: Developing a Code of Conduct for International
Arbitration’, 23 Mich. J. Int’l L 341 (2002); Catherine A. Rogers, ‘Context and Institutional Structure in Attorney
Regulation: Constructing an Enforcement Regime for International Arbitration’, 39 Stan. J. Int’l L. 1 (2004).
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recent years, numerous commentators, scholars, and practitioners have joined the growing
chorus calling for action.18 In response, several international organizations have developed
or are working to develop rules, guidelines, and codes.
3.07 One of the most important milestones is the work by the International Bar Association’s Task
Force on the Professional Conduct of Counsel in International Arbitration (Task Force).19 In
2013, the IBA published Guidelines for Party Representation in International Arbitration.
A second important initiative, still in the works as this book is going to press, is the creation
by the LCIA of a set of guidelines that are annexed to the LCIA arbitral rules and presumably
will be enforcable by arbitrators in LCIA arbitrations. Finally, although aimed expressly at
parties (not counsel or representatives) new revisions to the AAA Commercial Arbitration
Rules that became effective as of October 2013 authorize an arbitrator, upon request, to
order ‘appropriate sanctions’ on account of a party’s failure to comply with AAA rules or an
order of the arbitration. The rule requires that the arbitrator give the party against whom
sanctions are requested the opportunity to respond to a request for sanctions, and specifi-
cally prohibits the arbitrator from entering a default as a sanction.20 These developments
are discussed in greater detail in Chapter 6. This chapter focuses on some of the underlying
problems these new guidelines and rules are aimed at resolving.
18 See, e.g., Charles N. Brower and Stephan W. Schill, ‘Regulating Counsel Before International Tribunals’,
in Bekker et al. (eds.), Making Transnational Law Work in a Global Economy: Essays in Honour of Detlev Vagts
(2010) 488, 489 (arguing for creation of a new code of ethics for counsel in international arbitration and
new powers for arbitrators to enforce such rules); Doak Bishop, Ethics in International Arbitration, Speech
at the International Council for Commercial Arbitration Conference in South America (26 May 2010),
< http://www.arbitration-icca.org/conferences-and-congresses/ICCA_RIO_2010/ICCA_ RIO_2010_
Doak_Bishop.html>; Doak Bishop and Margrete Stevens, ‘The Compelling Need for a Code of Ethics in
International Arbitration: Transparency, Integrity and Legitimacy’, <http://www.josemigueljudice-arbitration.
com/en/arbitration-texts/?aID=146> (appending a proposed draft code of ethical rules); Carolyn B. Lamm
et al., ‘Has the Time Come for an ICSID Code of Ethics for Counsel?,’ in Karl Sauvant (ed.), 2009–2010
Y.B. Int’l Inv. L. & Pol’y (2010); Cyrus Benson, ‘Can Professional Ethics Wait? The Need for Transparency
in International Arbitration’, 3 Disp. Resol. Int’l 78, 83 (2009) (answering the titular question in the nega-
tive and proposing a non-binding ethical ‘checklist’); Robert W. Wachter, ‘Ethical Standards in International
Arbitration: Considering Solutions to Level the Playing Field’, 24 Geo. J. Legal Ethics 1143 (2011); John M.
Townsend, ‘Clash and Convergence on Ethical Issues in International Arbitration’, 36 U. Miami Inter-Am.
L. Rev. 1 (2004); see also Brian Cooper, ‘Ethics for Party Representatives in International Commercial
Arbitration: Developing a Standard for Witness Preparation’, 22 Geo. J. Legal Ethics 779 (2009); Carrie
Menkel-Meadow, ‘Are There Systematic Ethics Issues in Dispute System Design? And what We Should
[Not] Do About It: Lessons from International and Domestic Fronts’, 14 Harv. Negot. L. Rev. 195, 228–9
(2009); Carrie Menkel-Meadow, ‘Are Cross-Cultural Ethics Standards Possible or Desirable in International
Arbitration?’ in Peter Gauch et al. (eds.), Melanges en l’Honneur de Pierrie Tercier (2008) 883; Steven C.
Bennett, ‘Who Is responsible for Ethical Behavior By Counsel in Arbitration’, 63-JUL Disp. Resol. J. 38
(May–July 2008). There are also some scholars who have argued against development of specialized regulation
for international arbitration practice. Kristen Weisenberger, ‘Peace is Not the Absence of Conflict: A Response
to Professor Rogers’s Article “Fit and Function in Legal Ethics”’ 25 Wisc. Int’l L.J. 89, 89–128 (2007) (argu-
ing that extant rules of conduct are adequate for the purpose of regulating international arbitrations, and a
conflict-of-laws approach is the best option). See also Christopher J. Whelan, ‘Ethics Beyond the Horizon:
Why Regulate the Global Practice of Law?’ 34 Vand. J. Transnat’L L. 931, 931–52 (2001) (tentatively accept-
ing the inevitability of global regulation of attorneys, but questioning its desirability). It has also become
a popular topic at international arbitration conferences. See, e.g., Stephan Wilske, Presentation, Sanctions
for Unethical and Illegal Behavior in International Arbitration: a Double-Edged Sword? (Taipei, Taiwan,
17 Sept. 2010).
19
The author served as a member of the Task Force, though joined a few years after it had initially been
constituted. In light of obligations as a member of the Task Force, commentary on the substantive content of
the Guidelines is necessarily limited.
20
AAA Commercial Arbitration Rules, R-58 (sanctions).
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Counsel ethics in international arbitration proceedings
One interesting question, before turning to substance, is why development of interna- 3.08
tional ethical standards has lagged so far behind the development of procedural stand-
ards. The current flurry of efforts aimed at professional conduct in arbitral proceedings is
occurring nearly 15 years after the original promulgation of the IBA Rules on the Taking
of Evidence in 1999. One reason for the time lag is that procedural rules are generally
regarded as default rules, and thus subject to party autonomy in ordering arbitral pro-
ceedings.21 Ethical rules, meanwhile, are generally regarded as mandatory rules, and not
subject to modification. In a related vein, there are jurisdictional questions since attor-
neys are not formally parties to the arbitration agreement, which is the primary source
(directly or indirectly) of procedural rules. Finally, lawyers are educated and trained
in national legal systems and enjoy status as attorneys only because they are licensed
by national regulatory authorities. Since lawyers are a product of national bar authori-
ties, it seems implausible that international arbitration could wrest ethical regulation
from those authorities. Building on regulatory trends identified in Chapter 1,22 these
assumptions are challenged in the proposal for self-regulation developed in Chapter 6.
That chapter questions outdated assumptions that lawyers are predominantly creatures
of national legal systems that should be subject to exclusive regulation by national bar
authorities. This chapter sets the background for that later analysis by surveying the
uniquely cross-cultural and international ethical problems implicated in international
arbitration.
Section A begins by analysing the systemic problems that can arise when attorneys from 3.09
different systems with differing ethical obligations and assumptions participate in a single
international arbitral proceeding. Section B then surveys the substance of the most com-
mon and salient ethical conflicts that arise with regard to the conduct of counsel. It begins
the survey with the seminal example of pre-testimonial communication with witnesses to
explore the gap created by procedural innovations and left open by the current ethical ‘quick
fix.’ This analysis lays the groundwork for Chapter 7, where I propose the Functional Thesis
for developing such substantive rules for international arbitration.
A. Counsel ethics in international arbitration proceedings

International arbitration succeeds by detaching substantive decision-making and proce- 3.10
dural frameworks from the apparatus of domestic legal systems. One consequence of that
detachment is that it also disconnects counsel who appear in international arbitrations
from the national institutions that generally regulate them, but the extent and nature of
that detachment from national systems is not entirely clear. The result is an atmosphere of
ethical ambiguity, as described in Subsection 1. That ambiguity creates specific challenges
for the proper functioning of international arbitral proceedings, analysed in Subsection 2.
21 Christopher R. Drahozal, ‘Contract and Procedure’, 94 Marq. L. Rev. (2011) 1103, 1114 (‘[M]ost arbi-
tral rules function like default rules (generally subject only to the mandatory rules of the arbitral forum). They
generally provide that the arbitrator will conduct the proceedings in a manner consistent with the parties’ agree-
ment and, only when such agreement is lacking, may exercise his or her discretion.’).
22
See Chapter 1.
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1. A-national legal ethics?

3.11 It is often said that international arbitration occurs in an a-national space.23 While
arbitration physically takes place within the geographic boundaries of one nation, the
so-called ‘host State’ is by design largely constrained and detached from arbitral pro-
ceedings.24 As explained in Chapter 1, States’ interest in attracting more international
arbitration has led to express exemptions from local ethical rules for foreign attorneys
appearing in locally seated international arbitrations.25 Meanwhile, attorneys’ home
jurisdictions have historically acted as if their hands are tied with respect to conduct
that occurs in foreign jurisdictions, including in foreign-seated arbitrations. Few bar
authorities expressly extend their ethical rules and regulatory authority extraterritori-
ally or into foreign arbitration contexts.26 Finally, the prevailing, though shifting, view
is that international arbitrators do not have the power to sanction or directly regulate
attorneys appearing before them.27 The practical consequence of these conditions is that
counsel are almost completely free from ethical regulation (or guidance) in international
arbitral proceedings.28
23
See Yves Dezalay and Bryant Garth, Dealing in Virtue: International Arbitration and the Construction of
a Transnational Legal Order (1996) 17. ‘In most international arbitrations, the situs for arbitration is chosen
either by happenstance, for reasons of logistics and convenience, or because of its neutrality in relation to the
dispute and to the parties.’ Thomas E. Carbonneau, ‘The Remaking of Arbitration: Design and Destiny’ in
Thomas E. Carbonneau (ed.), Lex Mercatoria and Arbitration (1998) 27.
24 The New York Convention generally permits the nation where arbitration takes place to exercise an
expanded role in reviewing arbitral awards. In an effort to attract more international arbitration, however,
many nations have declined this opportunity and have instead legislated to constrain court review of
awards from arbitrations taking place within their boundaries. See William W. Park, ‘National Law and
Commercial Justice: Safeguarding Procedural Integrity in International Arbitration’, 63 Tul. L. Rev. 647,
649 (1989).
25
See Brand, ‘Professional Responsibility in a Transnational Transactions Practice’, 17 J.L. & Comm. 301,
335 (noting that notwithstanding applicability of State ethical rules to State-licensed attorneys, a bar opin-
ion permits parties to international arbitration to be represented by non-State-licensed attorneys); Toby S.
Myerson, ‘The Japanese System’, in Mary C. Daly and Roger J. Goebel, (eds.), Rights Liability and Ethics in
International Legal Practice (1994) 69 (noting that even traditionally restrictive Japanese law changed recently
to permit non-Japanese-licensed attorneys to engage in international arbitrations in Japan). The problem
is that, notwithstanding attempts to shoehorn ethical rules into the arbitration context, drafters of ethical
norms simply did not directly address the extension of their application into the arbitration context. See Carrie
Menkel-Meadow, ‘Ancillary Practice And Conflicts Of Interests: When Lawyer Ethics Rules Are Not Enough’,
13 Alternatives to High Cost Litig. 15 (1996) (‘[T]he ABA Model Rules of Professional Conduct were not
drafted with ADR in mind and efforts to fit ADR practice into the rules of more conventional advocacy will
not always work.’); Vagts, ‘The International Legal Profession’ 378 (noting that it is unclear whether the Model
Rules apply in arbitration proceedings). In the setting of international arbitration, debate about the nature and
extent to which national ethical norms apply is even more open-ended. See Peter C. Thomas, ‘Disqualifying
Lawyers in Arbitrations: Do the Arbitrators Play Any Proper Role?’ 1 Am. Rev. Int’l Arb. 562 (1990) (‘When
an English barrister suggested a couple of years ago that an advocate in a private commercial arbitration was
not bound by the same duties owed by counsel to a court, the immediate (near unanimous) response was shock
and indignation.’).
26 See Wachter, ‘Ethical Standards in International Arbitration’ 1143 (‘There is no obvious answer to the
question [of which ethical rules apply], and one or more sets of rules might apply, including the rules where
the attorney is licensed, the foreign jurisdiction where the attorney works, the rules of the seat of arbitration, the
rules adopted by the arbitral tribunal, or the rules where the conduct occurs.’).
27 The topic of arbitrators’ authority to regulate or sanction counsel is taken up in Chapter 6.
28 See Ivo G. Caytas, Transnational Legal Practice: Confl icts in Professional Responsibility (1992) 3 (‘[I] t
is fairly rare that misconduct “abroad” results in all too serious consequences “at home” (examples not-
withstanding) . . . [S]anctions remain essentially local.’); Rogers, ‘Fit and Function in Legal Ethics’ 342.
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Attorneys generally assume that their ‘home’ ethical rules—meaning the rules of the jurisdic- 3.12
tion where they are licensed—apply in international arbitration.29 That seemingly easy-to-
apply assumption is not always easy to apply to advocates in a typical international arbitration.
Most international arbitrations are staffed by a team of lawyers who, both individually and
collectively, are distinctively multinational. Individually, many international arbitration prac-
titioners are licensed in more than one jurisdiction.30 As a result, they likely have more than
one set of ‘home’ ethical rules that could apply in an international arbitration. Moreover, the
teams of lawyers who staff international arbitration, almost inevitably, are licensed in several
different jurisdictions. As a result, attorneys on the same team working for the same client may
be subject to different home ethical rules, even if there remains significant uncertainty about
whether home ethical rules actually apply.
Some commentators have suggested this confusion can be eliminated by applying the ethical 3.13
rules of the arbitral seat.31 While this approach would seem to avoid the problems associ-
ated with application of potentially multiple home rules of each participating attorney, it
raises problems of its own. First, as noted in Chapter 1, in an effort to attract international
arbitration business, most jurisdictions have expressly exempted foreign attorneys appearing
in locally seated arbitrations from the need to be locally licensed and, by implication, from
having to abide by local ethical rules.32
Second, the physical location of most international tribunals is either a random choice 3.14
produced through historical accident, negotiation, and compromise, or a choice predi-
cated on other non-substantive issues such as convenience.33 As a result, with only limited
exceptions, the substantive law and procedural traditions of the legal seat have little rel-
evance to the parties’ dispute. Given this detachment from international arbitral proce-
dures, the legal seat has even less relevance to the ethical conduct of lawyers who appear
pursuant to those procedures.34 Making counsel subject to ethical rules of the legal seat
29
See IBA Task Force on Counsel Conduct in Arbitration Survey (Sept. 2010) (on file with author) (reporting
that approximately 64% of respondents believe home ethical rules govern their conduct, and another 27% follow
home ethical rules in an abundance of caution). See also Henri Alvarez, ‘Autonomy of International Arbitration
Process’, in Loukas Mistelis and Julian Lew (eds.), Pervasive Problems in International Arbitration (2006) 6–16.
30
For example, an informal survey of the practice group websites of the ten of the leading firms in interna-
tional arbitration indicates that 42% of all attorneys practising in the area of international dispute resolution
are licensed in more than one jurisdiction, 23% in more than one national jurisdiction (4% in three or more
countries), and (for US practitioners) 21% were licensed in more than one US jurisdiction. See ‘Arbitration
Scorecard 2011: Top Arbitration Firms: The firms handling the most arbitrations in 2009–10’, Am. Law. 1
July 2011.
31
Kristen Weisenberger, ‘Peace is Not the Absence of Conflict’, 89–128. See also Catherine A. Rogers,
‘Lawyers Without Borders’, 30 U. Pa. J. Int’l L. 1035, 1050 (2009) (discussing US Model Rule 8.5’s application
of the ethical rules of the jurisdiction where a tribunal ‘sits’).
32 See Chapter 1, paras 1.77–1.104.
33 For example, the US-Iran Claims Tribunal was located in The Hague because of the ready availability of
The Peace Palace, support from the Dutch government, and The Hague’s history of neutrality. See Michael I.
Kaplan, ‘Solving the Pitfalls of Impartiality when Arbitrating in China: How the Lessons of the Soviet Union
and Iran Can Provide Solutions to Western Parties Arbitrating in China’, 110 Penn St. L. Rev. 769 (2006)
(attributing the success of the Tribunal to The Hague’s ‘chronicled history of neutrality’).
34 There are some instances in which international tribunals have jurisdiction over domestic crimes, which
may imply the presence of lawyers from the relevant jurisdiction. For example, the Special Tribunal for Lebanon
is a treaty-based Tribunal that was established through a resolution of the UN Security Council. It is unique,
and somewhat controversial, in that it depends solely on substantive crimes that are defined under domestic
Lebanese law. See Nidal Nabil Jurdi, ‘The Subject-Matter Jurisdiction of the Special Tribunal For Lebanon’,
5 J. Int’l Crim. Just. 1125, 1126 (2007).
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could produce some anomalous results. Imagine, for example, an American and a Russian
party selecting Italy as a seat for reasons of convenience, not realizing that that selection
would have implications for their attorneys’ professional obligations to them as clients. It
might be a rude awakening for a US client and its counsel to learn that, under Italian ethi-
cal rules, it is impermissible to speak to witnesses before they testify.
3.15 An added complication with reliance on the ethical rules of the seat is that they would seem
to apply only if and when an arbitration were actually commenced. Before that time, the
legal seat has no relevance to counsel conduct. If no arbitration were ever commenced, or if
a dispute between the parties were for some reason introduced in another forum (such as a
national court case challenging the enforceability of the arbitration agreement), the ethical
rules of the seat would seem to have no application.
3.16 Some legal systems, discussed in detail later, have choice-of-law provisions that would nev-
ertheless make the rules of the host jurisdiction applicable to counsel in international arbi-
tration. Since not all national ethical regimes have a similar choice-of-law provisions, those
choice-of-law provisions do not level the playing field. Instead, they ensure that their local
attorneys are bound by ethical rules that are most likely unrelated to the arbitral proceed-
ings and to the rules that apply to opposing counsel’s conduct. For example, under the US
choice-of-law rule, an attorney licensed in Washington DC appearing before the Iran-US
Claims Tribunal would be bound by Dutch ethical rules because the Tribunal is seated in
The Hague. Dutch ethical rules have no reasonable relationship to the proceedings before
the Tribunal (and are generally unfamiliar to both counsel and arbitrators). Informal survey
research reveals that attorneys and arbitrators at the Tribunal have no idea that at least some
US jurisdictions would make Dutch ethical rules applicable. Meanwhile, Iranian representa-
tives are not bound by Dutch ethical rules, but would instead remain subject to what, if any,
Iranian ethical rules may apply.
3.17 Even if the national ethical rules of the seat could be applied evenly to all counsel and rep-
resentatives subject to the same obligations, they would be an unsatisfactory solution. One
of the premier accomplishments of the New York Convention was to liberate arbitral pro-
ceedings from most local law.35 The purpose was to afford the parties (and by extension the
arbitrators) maximum flexibility in structuring the arbitral proceedings to suit the specific
needs of their case. Application of local ethical rules would re-introduce restrictions that
the Convention sought to reduce or eliminate. It would also be inconsistent with various
efforts to reduce the restrictions on foreign counsel appearing in locally seated international
arbitrations.
2. The effect of a-national ethical rules in arbitral proceedings

3.18 Attorneys often shift conduct based on context, even within national legal systems. For
example, an attorney appearing in a national court of first instance would conduct him-
self or herself differently than if appearing before an administrative tribunal, an appellate
court, a constitutional, or a supreme court within the same system. The shift in conduct
35 Mandatory local law may still apply in arbitral proceedings, but in most developed jurisdictions, the scope
of such law is quite limited. See Gary B. Born, International Commercial Arbitration (2009) 1241. This limited
application of mandatory law is in stark contrast to the assumption that prevailed prior to the Convention,
that an award could not be enforceable unless it was perfectly consistent with all local law, regardless of the law
selected by the parties. Kristen Weisenberger, ‘Peace is Not the Absence of Conflict’, 1255.
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to adjust to these various national adjudicatory contexts is much more subtle than the
shift required to adjust from national court proceedings to international arbitral proceed-
ings. Attorneys’ presumptive, though not definitive, allegiance to home ethical rules in
international arbitration may interfere with this adjustment, causing three distinct types
of problems.
The first, and arguably most severe, problem from an attorney’s perspective is sometimes 3.19
referred to by ethicists as the ‘double deontology’ problem. When an attorney is subject
to two conflicting ethical rules, the attorney may potentially be subject to discipline (or
other professional sanction) regardless of what course of action the attorney chooses. In
international arbitration, for example, the ethical rules or law of the arbitral seat or rules
adopted by an arbitral tribunal may require disclosure of information that an attorney’s
home ethical rules require be maintained as confidential. This situation would present a
‘double deontology’ problem if the rules or law of the seat were mandatory. Similarly, an
arbitral tribunal could order an attorney to do something that is prohibited by his or her
local ethical rules. Disobeying a direct order from the tribunal would arguably create a
similar double deontology problem if an attorney were ethically obliged to obey tribunal
orders.
In either of these situations, the attorney is facing a catch-22.36 Whichever course of action 3.20
the attorney follows, he or she will be violating at least one rule and therefore be subject to
possible sanctions.37 In fact, some attorneys have been caught up in such untenable situa-
tions. A German attorney, who would have been subject to professional discipline for vio-
lating a client’s confidence, refused to make a disclosure required by the British Proceeds
of Crime legislation and ended up being imprisoned on criminal charges.38 In 2007, an
American-licensed attorney who was a French national employed with a major US law firm
was criminally convicted and ordered to pay a €10,000 fine in France for interviewing a wit-
ness in France for the purposes of obtaining information for a court proceeding in the United
States in violation of French law.39
A second problem, which is more of a problem for the arbitral proceedings than for indi- 3.21
vidual attorneys, relates to procedural fairness. When attorneys in a single international pro-
ceeding abide by different ethical standards, the proceedings can be structurally unfair. The
now-paradigmatic illustration of the problem, which will be discussed in more detail later
in this chapter, is pre-testimonial communication between counsel and witnesses. Domestic
ethical rules and practices, reinforced by education and training, prohibit counsel from many
civil law jurisdictions from communicating with witnesses about facts of the case or upcom-
ing testimony. In some civil law systems such ‘misconduct’ might be punishable by serious
36
A ‘catch-22’ is an idiomatic expression meaning a ‘no-win’ or a ‘double bind’ situation. The reference
comes from Joseph Heller’s famous novel of the same title, which takes place on a Mediterranean Island off
the coast of Italy in the latter phases of the Second World War. In Heller’s account, a catch-22 is used to justify
irrational bureaucratic operations. In this context, the phrase signals the potential peril of (not a justification
for) bureaucratic imposition of sanctions regardless of what course of conduct the attorney chooses.
37 See Hans-Jürgen Hellwig, ‘At the Intersection of Legal Ethics and Globalization: International Conflicts
of Law in Lawyer Regulation’, 27 Penn St. Int’l L. Rev. 395, 398–9 (2008).
38 Hans-Jürgen Hellwig, ‘At the Intersection of Legal Ethics and Globalization: International Conflicts of
Law in Lawyer Regulation’, 399 (describing a German attorney who was imprisoned in London for refusing
to disclose information deemed confidential under German law).
39 See Paris Court of Appeals, File n. 06/06272, Judgment of 28 March 2007 (unofficial translation on file
with author).
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criminal penalties for witness ‘tampering’.40 US attorneys, on the other hand, are educated
and trained to believe that ‘preparing’ a witness to testify is not only standard practice,41 but
also necessary to avoid committing malpractice, if not an ethical breach.42
3.22 In that context, as Detlev Vagts explains:43
[I]t would not be workable to allow the counsel for opposing sides . . . to enter the courtroom
subject to different rules . . . It would not do to prohibit one lawyer from a civil law jurisdic-
tion from interviewing a witness before the trial while the American lawyer would not only
be allowed to do so but would be guilty of professional negligence if he or she presented an
un-interviewed witness.
This imbalance can create what might be called an ‘inequality-of-arms problem’.44 Practitioners
and commentators have observed that such inequities can affect the integrity and legitimacy of
international arbitration itself, as well as jeopardize the enforceability of particular awards.45
3.23 The third problem, implicit in the first two problems, is what might be called a choice-of-law
or conflicts-of-law problem. The examples of ethical conflict described previously effectively
presume that certain rules can or do apply. In reality, it is not at all clear when or how par-
ticular ethical rules apply in international arbitration. Although formal ethical rules are most
strongly associated with an attorney’s licensing authority, their relevance and application are
affected by a host of other considerations. Consider, for example, which ethical rules govern
40 See Mirjan Damaska, ‘Presentation of Evidence and Factfinding Precision’, 123 U. Pa. L. Rev. 1083,
1088–9 (1975) (‘ “Coaching” witnesses [in inquisitorial systems] comes dangerously close to various criminal
offenses of interfering with the administration of justice’ as well as being contrary to professional canons of
ethics).
41 See Hamdi & Ibrahim Mango Co. v Fire Ass’n of Phila., 20 F.R.D. 181 (S.D.N.Y. 1957) (acknowledging
that it is a usual and legitimate practice for ethical and diligent counsel, in preparing their witnesses for either
deposition or trial testimony, to confer with each witness before testimony is given). Similarly, in England,
barristers routinely interview client and expert witnesses, and solicitors interview fact witnesses as well as
review potentially difficult questions that may come up on cross-examination. See also Wolfram, Modern
Legal Ethics (1986), § 12.4.3, 648, 648 n. 92 (1986) (citing H. Cecil, Brief to Counsel, 2nd edn. (1972) 102).
42 Although not defined in US codes as a formal ethical obligation, several courts have treated failure to pre-
pare a witness as a breach of the duty of competent representation. See, e.g., District of Columbia Bar, ‘Opinion
No. 79: Limitations on a Lawyer’s Participation in the Preparation of Witness Testimony,’ Code Prof. Resp. &
Opinions D.C. Bar Legal Ethics Comm. (1991) 138, 139 (stating that an attorney who had the opportunity to
prepare a witness, but failed to do so, would not be properly fulfilling his or her professional obligations); In re
Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D. Nev. 1998) (characterizing witness preparation as an ‘ethical’
obligation incumbent on attorneys); Hall v Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993) (implying
that an attorney has the right and the duty to prepare a client for deposition). Under this view, witness prepara-
tion would be another example of a double deontology problem, as discussed.
43 Vagts, ‘Professional Responsibility in Transborder Practice’ 690.
44
Robinson v Jamaica, U.N. Human Rights Committee, Communication No. 223/1987, at 2.1, 10.3–
10.4, U.N. Doc. CCPR/C/35/D/223/1987 (1989) (finding inequality of arms as to witness access and lack of
legal representation).
45 See Charles N. Brower and Stephan W. Schill, ‘Regulating Counsel Conduct before International
Arbitral Tribunals’, 491 (adopting a definition of ‘legitimacy’ as acceptance of ‘a rule or rule-making institu-
tion which itself exerts a pull toward compliance on those addressed normatively because those addressed
believe that the rule or institution has come into being and operates in accordance with generally accepted
principles of right process’.); Thomas E. Carbonneau, ‘The Remaking of Arbitration: Design and Destiny’,
in Lex Mercatoria and Arbitration (1998) 23, 27 (‘Contrastive procedural traditions provide for different
concepts of justice and, as a result, are difficult to reconcile. Arbitration’s legitimacy as a mechanism for
transnational adjudication depends upon how fair the governing procedures are or are perceived to be by the
constituent parties.’).
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a New York lawyer’s confidentiality obligations to his or her French client in a Singapore-
seated arbitration against a Japanese company that is represented by the German office of an
English law firm? Most attorneys faced with this question could offer only a confused shrug.
Most national bar authorities could not do much better.
A few national ethical rules have recently incorporated choice-of-law rules designed to aid 3.24
attorneys in determining which ethical rules apply to particular conduct outside the juris-
diction (and determine which rules would apply in the event of disciplinary proceedings).
Despite the good intentions, most choice-of-law rules regarding ethics end up being like the
mechanized voice on a GPS device that unambiguously directs you to ‘TURN LEFT AND
CONTINUE ON’ despite the fact that the road to the left is a dead end.
For example, US Model Rule 8.5 provides that ‘for conduct in connection with a mat- 3.25
ter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits [shall
apply], unless the rules of the tribunal provide otherwise’.46 An initial problem (and sign
that the drafters of Model Rule 8.5 either did not understand or did not specifically consider
international arbitration) is that the relevant touchstone for international arbitral tribunals
is not where they ‘sit’, but where they have their legal ‘seat’.47 The larger problem, noted
here and in Chapter 1, is that most jurisdictions intentionally exclude lawyers in locally
seated international arbitrations from local ethical regulation.48 Model Rule 8.5, therefore,
subjects attorneys to ethical rules that, by their own terms, do not purport to apply to those
attorneys’ conduct. While it may not be necessary to have complicity with the jurisdiction
whose ethical rules are deemed to govern, unlike other choice-of-law contexts, as described
in more detail in Chapter 6, applying foreign ethical rules by disciplinary authorities prob-
ably requires some degree of regulatory coordination.49
Efforts at choice-of-law guidance by the Council of Bars and Law Societies of Europe (CCBE) 3.26
did not fare much better. The CCBE is an entity charged with regulating cross-border prac-
tice in Europe. To that end, it developed a Code of Conduct that governs various aspects
of cross-border practice in Europe. For appearance before arbitral tribunals, the Code
46
The full text of Rule 8.5(b) reads as follows: ‘(b) Choice of Law. In any exercise of the disciplinary author-
ity of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in
connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits,
unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in
which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction,
the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predomi-
nant effect of the lawyer’s conduct will occur.’ Model Rules of Prof ’l Conduct, R. 8.5 (2002).
47 The distinction between where a tribunal ‘sits’ and its legal ‘seat’ would not be intuitively obvious for
domestic practitioners unfamiliar with international tribunals. As I have explained elsewhere: International
tribunals may ‘sit’ in one place, but have their ‘seat’ in another. For example, the Statute for the International
Tribunal for the Law of the Sea provides that the Tribunal has its ‘seat’ in ‘the Free and Hanseatic City of
Hamburg in the Federal Republic of Germany’, but ‘may sit and exercise its functions elsewhere whenever it
considers this desirable’.
Catherine A. Rogers, ‘Lawyers Without Borders’, 1050. Even if national rules are borrowed for inter-
national arbitration as a temporary solution, however, ‘those rules should not be identified based on the
jurisdiction where an international arbitration tribunal “sits”, but instead where it has its “seat”. Otherwise,
Rule 8.5 ascribes to the place where a tribunal sits an importance that was never intended by either the
architects of these tribunals or the parties appearing before them.’ Catherine A. Rogers, ‘Lawyers Without
Borders’, 1051.
48
49
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provides: ‘A lawyer who appears, or takes part in a case, before a court or tribunal must
comply with the rules of conduct applied before that court or tribunal.’50 The problem, of
course, is that international arbitral tribunals do not have any ethical rules that automati-
cally apply. The other choice-of-law rule in the CCBE Code is equally unhelpful: it simply
suggests that attorneys who conduct legal activities in another Member State jurisdiction
inform themselves about the rules of the other Member State jurisdiction,51 but is silent
about what to do in the event of a conflict or double deontology problem.
3.27 With respect to a few particularized conflicts, the CCBE Code seeks to provide work-arounds
that obviate stand-offs, but stops short of providing real choice-of-law guidance. For example,
the CCBE takes up the conflicts between national ethical rules regarding receipt of ‘confi-
dential’ communications from opposing counsel. As described in greater detail later, some
systems impose an obligation to withhold the communication as confidential, whereas other
systems require an attorney to communicate the same information to his or her client.52
Instead of adopting a definitive rule resolving the conflicting approaches, Rule 5.3 of the
CCBE Code instructs that if an attorney wants correspondence handled confidentially, he or
she should clearly state such. If the addressee is not able to withhold the correspondence from
the client, the receiving attorney must return it without revealing its contents.53 The CCBE is
careful not to treat this provision as a choice-of-law rule, even if it effectively chooses between
the competing rules by precluding the receiving attorney from revealing the contents.
3.28 Perhaps the most thoughtful effort at a choice-of-law rule is that of the Solicitors Regulation
Authority (SRA) regarding ‘overseas practice’.54 Its new Code, effective as of October 2011,
provides detailed analysis of what rules apply, do not apply, or apply differently in ‘overseas
practice.’55 Unfortunately, ‘overseas practice’ is defined narrowly to include only ‘prac-
tice from an office outside England and Wales [or in certain cases] practice from an office
in Scotland or Northern Ireland’.56 The specialized applications, in other words, do not
generally apply to an attorney who is based in a London office, but appearing before an
international arbitral tribunal in, for example, Dubai. This limitation is underscored, for
example, in Chapter 5 of the Code (dealing with clients and courts), which provides that
‘[t]he outcomes in this chapter apply to your overseas practice in relation to litigation or
advocacy conducted before a court, tribunal or enquiry in England and Wales or a British
court martial’. There is no separate guidance about what should happen when an attorney
appears before a foreign or international tribunal. This latter topic is evidently due to be
50 CCBE Code of Conduct for European Lawyers, art. 4.1 (2010).

51
Article 2.4 of the CCBE Code provides: ‘When practising cross-border, a lawyer from another Member
State may be bound to comply with the professional rules of the Host Member State. Lawyers have a duty to
inform themselves as to the rules which will affect them in the performance of any particular activity.’ CCBE
Code of Conduct, Art. 2.4.
52 See paras 3.64–3.69.
53 CCBE Code of Conduct, art. 5.3.
54 See Solicitors Regulation Authority (SRA) Code of Conduct, Rule R.15 (providing the rules regarding
overseas practice, ranging from conflicts of laws to fee practices).

55 The SRA’s new Code adopts an ‘outcome-focused’ approach to ethical regulation. According to the SRA,
this new outcome-focused approach concentrates on the high-level principles and outcomes that should drive
the provision of legal services for consumers. It replaces a detailed and prescriptive rulebook with a targeted,
risk-based approach concentrating on the standards of service to consumers. There is greater flexibility for firms
in how they achieve outcomes (standards of service) for clients. See ‘Outcomes-Focused Regulation’, <http://
www.sra.org.uk/freedominpractice/>.
56
Solicitors Regulation Authority, Code of Conduct (2011), Chapter 15 (definition of ‘Overseas practice’).
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National differences in ethical rules
taken up separately by the SRA in an effort to regulate ‘international practice’ (as distinct
from ‘overseas practice’).57
These various but limited efforts at developing choice-of-law rules to determine which 3.29
national ethical rules will apply in international proceedings demonstrate the limitations of a
choice-of-law approach. Although some scholars have suggested that the conflicts, described
in detail later, could be resolved through choice-of-law rules, developing such rules appears
to be an even greater challenge than resolving the conflicts through development of inter-
national norms.
B. National differences in ethical rules

It is often said that all professional legal ethics are informed by fundamental, universal norms.58 3.30
While all systems appear to have some ethical commitments in common, the apparent con-
sensus exists at a high level of abstraction. Often, apparent similarities are merely ‘acoustic
agreement’. For example, it is true that every system imposes on attorneys a duty of confidenti-
ality.59 The definition of ‘confidentiality’, however, is different in every legal system.60 Similarly,
virtually every legal system requires attorneys to be ‘independent’. In using this term, however,
some systems are referring primarily to ‘independence from the State’, whereas other systems
are referring to ‘independence from clients’.61
This section analyses the most significant conflicting ethical norms that arise in international 3.31
arbitration. While it does not exhaustively catalogue all the differences in national systems,
it does attempt to cut through the superficial similarities and identify the most significant
differences among systems. It also attempts to present these conflicts in a manner that will
allow more systematic analysis later in Chapters 5, 6, and 7.
1. Witness communication, improper influence, and perjury

The paradigmatic example of conflicting national ethical rules in international arbitration is 3.32
pre-testimonial communication with witnesses. The conflict is often distilled into a simple
dichotomy: civil law systems generally prohibit pre-testimonial communication; common law
systems generally permit such communication. While superficially accurate, this description
is ultimately misleading in its simplicity.62
57 See <http://www.sra.org.uk/sra/consultations/regulation-international-practice.page#heading_toc_j_1>
(providing an overview of work by the SRA to resolve questions related to regulation of overseas practice and
inviting commentary).
58 Thomas Lund, Professional Ethics (1970) 18 (‘Despite differences in legal systems, legal practices and
procedures and legal customs, lawyers in many countries throughout the world have laid down for themselves
substantially the same standards of legal ethics . . .’); see also David Luban, The Sources of Legal Ethics, 48 Rabels
Zeitschrift für Ausländisches und Internationales Privatrecht 246, 264–7 (1984) (concluding that German and
American ethical rules are essentially similar).
59 See Geoffrey C. Hazard, Jr, ‘An Historical Perspective on the Attorney-Client Privilege’, 66 Cal. L. Rev.
1061 (1978).
60 See paras 3.64–3.69.
61 See Chapter 7.
62 Scholars and commentators often divide the world into systems deriving from the ‘common law’ and ‘civil
law’ traditions. While a useful heuristic, these terms are very rough generalizations, which operate more as ‘ideal
types’ (to borrow Mirjan Damaska’s terminology) than nuanced descriptions of actual, existing legal systems.
Mirjan R. Damaska, The Faces of Justice and State Authority (1986) 4 n. 4. These categories can be misleading,
however, because they suggest a degree of uniformity within each tradition that is not often present, and they fail
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3.33 It is true that some systems from the so-called ‘civil law tradition’, such as Belgium, France,
Italy, Switzerland, and Germany, greatly restrict pre-testimonial communication with wit-
nesses in domestic court proceedings and often treat such communication as an ethical viola-
tion.63 It is also true that other systems, most strikingly the United States, permit attorneys
not only to communicate with witnesses before they testify, but also to ‘coach’ witnesses,
including reviewing possible cross-examination questions, rehearsing testimony,64 and sug-
gesting possible wording of testimony.65 According to some sources, US attorneys are even
ethically obliged to engage in this practice as part of their duty of competence.66 But this
black and white picture hides the many shades of grey that exist with national rules regarding
witness communication.
a. Subterranean conflicts
3.34 Even if the boundaries regarding pre-testimonial witness communication seem well
defined, there are many differences that exist below the surface. Among legal systems that
are traditionally grouped together either as ‘civil law’ or as ‘common law’, there are signifi-
cant variations regarding what is allowed with regard to pre-testimonial communication.
For example, within the so-called civil law tradition, witness ‘coaching’—meaning review-
ing and rehearsing testimony with a witness—is apparently permitted in the Netherlands
but prohibited in Belgium.67 Meanwhile, among those systems in the Anglo-American
to account for the fact that most systems of the world do not fit neatly into one category or other. In the context
of witness communications, most national ethical rules in Latin America do not prohibit pre-testimonial com-
munications, even if those countries are usually characterized as being part of the civil law tradition. On the
recent spread of ‘mixed’ systems to Latin America, see Máximo Langer, ‘Revolution in Latin American Criminal
Procedure: Diffusion of Legal Ideas from the Periphery’, 55 Am. J. Comp. L. 617 (2007).
63 Some of the earliest identifications of this distinction were comparative law scholars, not practition-
ers. See Damaska, ‘Presentation of Evidence and Factfinding Precision’, 1088–9; John H. Langbein, ‘The
German Advantage in Civil Procedure’, 52 U. Chi. L. Rev. 823, 834 (1985) (The German lawyer ‘virtually
never [has] out-of-court contact with a witness’, because, under the German rules of ethics, a lawyer ‘may
interview witnesses out of court only when it is justified by special circumstances. He has to avoid even the
appearance of influencing the witness and is, in principle, not allowed to take written statements.’). See
also John H. Langbein, ‘ Trashing “The German Advantage” ’, 82 Nw. U. L. Rev. 763, 767 (1988) (noting
that the prohibition is not absolute and communication with witnesses is permitted in cases of ‘unusual
necessity’).
64 Hamdi & Ibrahim Mango Co. v Fire Ass’n of Phila., 20 F.R.D. 181, 182–3 (S.D.N.Y. 1957) (acknowl-
edging that it is a usual and legitimate practice for ethical and diligent counsel, in preparing their witnesses
for either deposition or trial testimony, to confer with each witness before testimony is given); Joseph D.
Piorkowski, Jr, Note, ‘Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable
Limitations of “Coaching”’, 1 Geo. J. Legal Ethics 389, 390–1 (1987).
65 Restatement (Third) of the Law Governing Lawyers § 116(b) cmt. b (2000).
66
Although not defined in US codes as a formal ethical obligation, several commentators and courts have
indicated that failure to prepare a witness can be a breach of the duty of competent representation. See, e.g.,
Kevin C. McMunigal, ‘Witness Preparation: When Does It Cross the Line?’ 17-FALL Crim. Just. (2002) 48
(citing comment 5 to Model Rule 1.1); David H. Berg, ‘Preparing Witnesses’, 13 No. 2 Litig. 13, 14 (1987)
(concluding it is ‘probably unethical to fail to prepare a witness’); D.C. Bar Op. No. 79 (18 Dec. 1979),
reprinted in District of Columbia Bar, Code of Professional Responsibility and Opinions of the District of Columbia
Bar Legal Ethics Committee (1991) 138, 139 (stating that an attorney who had the opportunity to prepare a
witness, but failed to do so, would not be properly fulfilling his or her professional obligations).
67 A 1973 ethical rule limited pre-testimonial communications to special circumstances when clarification
was needed. This rule expressly limiting such communication was ‘dropped’ from German ethical rules in
1996, according to one German scholar, ‘probably because there seemed no need for it’ since attorneys know
that a ‘judge would take a dim view of the reliability of a witness’ who had had extensive consultations with an
attorney. See Hein Kötz, ‘Civil Justice Systems in Europe and the United States’, 13 Duke J. Comp. & Int’l L.
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tradition that generally tolerate pre-testimonial communication, there are also significant
differences. As described by one international attorney, ‘An Australian lawyer felt that
from his perspective it would be unethical to prepare a witness; a Canadian lawyer said it
would be illegal; and an American lawyer’s view was that not to prepare a witness would
be malpractice.’68
In the United States, arguably the most permissive nation, legal ethics are regulated at the 3.35
state level and there are differences among state jurisdictions. Many states impose limitations
designed to protect the fairness of proceedings,69 such as prohibitions by some courts against
lawyers speaking with non-client witnesses during recesses in testimony,70 using certain
types of pre-trial coaching that are deemed to be unfair,71 and asking a ‘third person’ to
Myspace- or Facebook-friend a deposition witness.72 US rules also impose special obligations
that attach when contacting persons who are represented by an attorney, and general pro-
hibitions against contacting former employees who have confidential information.73 Even
with regard to former employees who do not necessarily have confidential information,
there is also some divergence among states about the extent and limits on such communica-
tions.74 Pre-testimonial communication with witnesses, in other words, is a complex issue.
As explored in more detail in the pages that follow, it is not a binary problem of categorically
permitting or prohibiting it.
61, 66 (2003); Damaska, ‘Presentation of Evidence and Factfinding Precision’, 1088–9. Pre-testimonial com-
munication with witnesses is permitted in some special circumstances. See John H. Langbein, ‘The German
Advantage in Civil Procedure’, 834; Langbein, ‘Trashing “The German Advantage”’, 767.
68
K.L.K. Miller, ‘Zip to Nil?: A Comparison of American and English Lawyers’ Standards of Professional
Conduct’, CA32 ALI-ABA 199, 199–223, 204 (1995).
69
John W. Allen, ‘Emerging from the Horse Shed and Still Passing the Smell Test-Ethics of Witness
Preparation and Testimony’, 32 SUM Brief 56 (2003); Bennett L. Gershman, ‘Witness Coaching by
Prosecutors’, 23 Cardozo L. Rev. 829, 859–62 (2002); Joseph D. Piorkowski, Jr, Note, ‘Professional Conduct
and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching”’, 1 Geo. J.
Legal Ethics 389, 390–1 (1987) (describing an attorney’s goals during witness preparation as to aid the
witness telling the truth and organizing the facts, to introduce the witness to the legal process, to instil the
witness with self-confidence, to eliminate opinion and conjecture from the testimony, to make the wit-
ness understand the importance of his or her testimony, and to teach the witness to fight anxiety against
cross-examination).
70
Charles F. Wolfram, Modern Legal Ethics (1986) § 12.4.3, 648–9.
71
Gershman, ‘Witness Coaching by Prosecutors’ 859–62.
72 Phila. Bar Ass’n Prof ’l Guidance Comm. Op. 2009-02 (March 2009), <http://www.philadelphiabar.
org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf>
(holding that a lawyer could not ask a ‘third person’ (presumably a paralegal or office employee) to Facebook-
friend a deposition witness).
73
Model Rules of Prof ’l Conduct, R. 4.2 (2004); DC Bar Opinion 287: ‘Ex Parte Contact with Former
Employees of Party-Opponents’, <http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion287.
cfm>; Habib Hasrullah and Carolyn J. Fairless, ‘Interviews with Former Employees: Strategies and Pitfalls’,
16 No. 2 Prac. Litigator 47 (2005).
74
Compare Va. Rules of Prof ’l Conduct, R. 4.2, cmt. 7 (permitting attorneys to communicate ex parte
with former employees or agents even if they were a member of the organization’s ‘control group’) with DC
Bar Opinion 287: ‘Ex Parte Contact with Former Employees of Party-Opponents’, <http://www.dcbar.org/
for_lawyers/ethics/legal_ethics/opinions/opinion287.cfm> (permitting lawyers to contact unrepresented former
employees of a party-opponent without obtaining consent from that party so long as prior to the communi-
cation the lawyer discloses the lawyer’s identity and the fact that the lawyer represents a party adverse to the
ex-employee’s former employer).
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b. An elusive international consensus

3.36 Despite some differences in national approaches, the international arbitration community
appears to have developed consensus on the issue of pre-testimonial communication. The
consensus is reflected in the 2010 IBA Rules on the Taking of Evidence in International
Commercial Arbitration (IBA Evidence Rules). Article 4(3) provided that ‘[i]t shall not
be improper for a Party, its officers, employees, legal advisors or other representatives to
interview its witnesses or potential witnesses and to discuss their prospective testimony with
them’.75 Even if it seems like a great equalizer, the negative construction of Article 4(3) (‘It
shall not be improper . . .’) reveals that this language is not an affirmative rule. Instead, it is an
attempt to remove a prohibition that functioned as an artificially low ceiling for some coun-
sels’ ability to communicate with witnesses. As will be seen in the discussion that follows,
however, it does not necessarily create an even floor or a level playing field.
3.37 Simply removing (or attempting to remove) national prohibitions against pre-testimonial
contact leaves open several important questions about witness communication.76 This ambi-
guity is implicitly acknowledged in the 2010 revisions to Article 4(3), which supplemented
previous language that permitted ‘interviews’ to also allow for ‘discuss[ion] of potential tes-
timony’. This seemingly broader permission is still too vague to resolve some of the most
difficult questions. Does this permission to engage in ‘interviews’ or ‘discuss potential tes-
timony’ also allow ‘preparation’ of witnesses and ‘rehearsal’ of witness testimony?77 Does it
permit contact with former employees of an opposing party, or with individuals who hold
confidential information about the opposing party? 78 What are the obligations of counsel
when a witness they prepared then commits perjury? Are there limits to witness interviews if
a witness is represented by counsel? Is it permissible to compensate a witness for time spent
interviewing, preparing, and testifying? A poll of Continental practitioners would likely gen-
erate different answers to these questions than a poll of US lawyers. Indeed, one well-known
Belgian arbitrator who is clearly aware of Article 4(3) and prevailing trends, still considers it ‘a
daring step’ for Continental practitioners to prepare their own client’s witnesses, and ‘beyond
. . . imagination’ and such ‘flagrant misbehaviour’ to contact an opposing party’s witnesses.79
3.38 The continued divergence of opinions regarding the nature and extent of permissible com-
munication with witnesses exists because the issue is mistakenly treated as a simple binary
problem, which elides the extent of differences between systems. Civil law systems that
75 IBA Rules Taking Evid. Int’l Arb., art. 4(3) (29 May 2010) (IBA R. Evid.). Although it is designated to be
a rule of evidence, its use of the word ‘improper’ reveals that it is effectively a rule aimed at finessing the ethical
issue. The inter-relationship between procedures and ethics is an important part of the larger story, and will be
addressed in Chapter 7.
76
Lucy Reed and Jonathan Sutcliffe, ‘The “Americanization” of International Arbitration?’ 16-4 Mealey’s
Int’l Arb. Rpt. 11 (2001) (suggesting that while some consensus has emerged about the possibility of prelimi-
nary communication with witnesses, there remains conflict as to the extent permitted).
77
In the United States, while the US has the most permissive rules, witness preparation or ‘coaching’ is
subject to serious critiques within the US system. See Roberta K. Flowers, ‘Witness Preparation: Regulating the
Profession’s “Dirty Little Secret”’, 38 Hastings Const. L.Q. 1007 (2011).
78
While US attorneys have wide latitude to interview witnesses, there are some important limitations,
particularly with respect to former employees who may have confidential information. See Habib Hasrullah
and Carolyn J. Fairless, ‘Interviews with Former Employees: Strategies and Pitfalls’, 16 No. 2 Prac. Litigator
47 (2005); DC Bar Opinion 287: ‘Ex Parte Contact with Former Employees of Party-Opponents’, <http://
www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion287.cfm>. See also James Castello and
Catherine Rogers, ‘Q&A: Is Arbitration an Ethical Wasteland?’ Global Arb. Rev. (17 June 2009).
79
Van Houtte, ‘Counsel-Witness Relations’ 460.
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categorically ban pre-testimonial communication in domestic proceedings do not need, and

therefore have not promulgated, rules regarding various sub-issues defining the limits of
pre-testimonial communication once it is allowed. Removing civil law prohibitions, in other
words, leaves too much open.
c. Choice-of-law
Assuming that Article 4(3) of the IBA Evidence Rules is a step in the right direction, it is a 3.39
step that may trip up some lawyers. Ethical rules are generally regarded as mandatory rules,
meaning that they cannot be displaced by an agreement. They also cannot be displaced by
non-binding evidentiary rules promulgated by a voluntary international trade organization,
such as the IBA.80 To be effective, international ethical rules purporting to authorize attor-
neys to engage in conduct that is not permitted by their local ethical rules cannot effectively
authorize that conduct in the absence of a choice-of-law mechanism that is adopted by their
local bar authorities.
Problems at the International Criminal Tribunal for the Former Yugoslavia (the ICTY), 3.40
which faced similar problems with pre-testimonial communications, illustrate this point.
The ICTY through its Registrar formally enacted a code of conduct that applies to all defence
counsel who appear before it.81 The ICTY is a public international tribunal established by
a statute of the United Nations.82 Despite the public nature of the ICTY, in the absence
of express authorization from national professional regulatory authorities, these attor-
neys do not regard their local ethical rules as superseded or displaced by the ICTY Code.83
Accordingly, even though they are permitted under the ICTY Code of ethics to engage in
pre-testimonial communication, attorneys from various former-Soviet States will not. The
ITCY works around this problem ‘by providing two or more defence counsel who can assign
tasks among themselves based on their home jurisdiction rules’.84
International arbitration practitioners appear to be, in general, more pragmatic and perhaps 3.41
more daring than the defence counsel at the ICTY. Instead of waiting for a top-down solution,
international arbitration practitioners developed a bottom-up general consensus that was
distilled into Article 4(3) of the IBA Evidence Rules. Like the ICTY, however, the solution
in Article 4(3) on its own does not necessarily excuse counsel from local ethical prohibitions.
In several jurisdictions, international arbitration practitioners have accomplished what 3.42
ICTY defence counsel have not—they have garnered special exemptions from local ethi-
cal rules for attorneys in international proceedings. In Switzerland, for example, Article 7
80
Even the International Law Association Code (discussed in Chapter 1) cannot trump national ethical
rules absent a domestic choice-of-law rule that authorizes such displacement.
81 See Code of Professional Conduct for Counsel Appearing Before the International Tribunal (Code of
Conduct) (12 June 1997), <http://www.icty.org/sections/LegalLibrary/Defence>.

82 See United Nations International Criminal Tribunal for the Former Yugoslavia: About the ICTY,
<http://www.icty.org/sections/AbouttheICTY>; United Nations General Assembly Security Council,

Seventeenth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991 (30 July 2010), <http://www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/
annual_report_2010_en.pdf>.
83 Judith A. McMorrow, ‘Creating Norms of Attorney Conduct in International Tribunals: A Case Study of
the ICTY’, 30 B.C. Int’l & Comp. L. Rev. 139, 142 (2007).
84 See McMorrow, ‘Creating Norms of Attorney Conduct in International Tribunals’ 142–43 (2007)
(describing how legal education, malpractice standards, market and informal social controls, and applicable
mechanisms of self-regulation shape the ethical obligations of attorneys in domestic contexts).
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of the Code Suisse de Deontologie provides with respect to contact avec les témoins (contact
with witnesses): ‘L’avocat s’abstient d’influencer les témoins et experts. Demeurent reservée les
règles particulières des procédures d’arbitrage et procédures devant les Tribunaux supranation-
aux.’ Under this provision, attorneys are generally prohibited from ‘influencing’ witnesses
and experts, but there is a special exception when such conduct is permitted by procedures
of an arbitral or international tribunal. Similarly, a resolution of the Conseil de l’Ordre de
Paris permits members of the Paris Bar to prepare witnesses in accordance with ‘applicable
rules’ in international arbitration proceedings that are located in France or abroad.85 The
Deontological Code of the Brussels Bar similarly provides that the local prohibitions against
contacting witnesses do not apply in foreign or transnational arbitration when permitted
under the rules governing that arbitration.86
3.43 These provisions are instructive at several levels. First, they suggest that national bar authori-
ties may regard their national ethical rules as applying to conduct before international tri-
bunals. Under this view, attorneys appearing before the ITCY, whose Code of Conduct
expressly permits witness communication, would seem to be justified in their concerns about
potential consequences for violating their home ethical rules that do not allow such com-
munication.87 Under this view, it would also seem that a more comprehensive choice-of-law
regime is necessary to address conflicts regarding other ethical rules beyond pre-testimonial
communication.
3.44 These national exemptions also suggest some important lessons for future developments
in legal ethics in international arbitration. They demonstrate that, at least in some jurisdic-
tions, international arbitration practitioners have sufficient influence to effectuate accom-
modations in local ethical rules. This ability may either be a measure of the stature and
influence of the international arbitration community in these jurisdictions, or reflect the
willingness of bar authorities to cede at least some control over ethical regulation in interna-
tional arbitration.88 In practice, for the reasons described in Chapter 1, it is likely to be some
combination of the two.89 Either way, the promulgation of these provisions is an important
data point since efforts to develop an ethical regime for international arbitration will require
support from national bar authorities.90
3.45 One final observation about these provisions is that they excuse compliance with local ethi-
cal rules as long as witness communication is consistent with an international tribunal’s
85
See also Bulletin du Bâttonnier n. 9 du 4 Mars 2008.
86 Van Houtte, ‘Counsel-Witness Relations’ 461 (citing articles 5 and 16.5 and 16.8 of the Deontological
Code of the Brussels Bar).
87
In some countries, such as Italy, anecdotal evidence suggests that not all attorneys regard national ethi-
cal prohibitions as supplanted by transnational practice in arbitration, even if leading international arbitra-
tion practitioners adopt the prevailing international consensus in international publications. M. Rubino
Sammartano, ‘Italy,’ in F.B. Weigand (ed.), Practitioner’s Handbook on International Arbitration (2002).
88 It is possible that the exemptions were considered necessary because there was ambiguity among attorneys
and regulators regarding the status of the exemption in relation to local ethical prohibitions.
89
As noted in Chapter 1, international arbitration practitioners are often counted among top legal elites
and, separately, bar authorities have generally been willing to take a hands-off approach to regulating attorneys
in international arbitrations for various reasons. See Chapter 1.
90
See Chapters 6 and 8.
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procedural rules. In this sense, these provisions are not really conflict-of-laws rules, which
authorize substitution of another ethical rule for the local rule. They are, instead, more
like a proverbial Get-Out-of-Jail Free Card. They relieve attorneys from local ethical rules
regarding pre-testimonial communications in international proceedings. Because Belgium,
Switzerland, and France generally prohibited pre-testimonial communication, they never
promulgated other rules regarding the various sub-issues that define the limits of pre-testi-
monial communication once it is allowed in some form.
Meanwhile, the 2006 version of Article 4(3) of IBA Evidence Rules states that it is not 3.46
improper to ‘interview’ witnesses, but provides no guidance regarding what constitutes an
‘interview’, specifically whether an ‘interview’ might also encompass ‘rehearsal’ of testi-
mony or efforts to ‘coach’ or ‘prepare’ a witness. In 2010, Article 4(3) of the IBA Evidence
Rules was revised to clarify that it is not improper to ‘discuss [with witnesses] their prospec-
tive testimony’. As one commentator notes, however, ‘ “discuss” is a broad concept’.91 Even
with the revisions to Article 4(3), remaining ambiguity may simply be a reflection of the
continuing disagreement regarding the extent to which communication with witnesses is
or should be permitted.92
For these reasons, removing national prohibitions against witness communication elimi- 3.47
nates one of the most obvious forms of conflicting ethics, but leaves in its place a range of
more subtle, but potentially disruptive, ethical differences. Perhaps more importantly, these
provisions appear to turn the tables. Now, attorneys from Belgium, Switzerland, and France
are technically free from any ethical regulation on when and how they communicate with
witnesses.93 Meanwhile, US, English, Canadian, and Australian attorneys remain subject
to (implicitly or explicitly) national ethical rules governing the nature and extent of witness
communications.
2. Information disclosure and document exchange

While witness communication is the hallmark example of conflicting national ethical norms, 3.48
it is part of a larger divide involving numerous other ethical issues. Pre-testimonial witness
communication, typical in common law systems, is part of a larger process referred to as
‘disclosure’ or, in the United States, ‘pre-trial discovery’. In common law jurisdictions, this
phase of litigation usually includes requests for an exchange of documents.94 In this phase,
which is managed principally by the attorneys, each party requests from opposing parties
documents that are relevant to the case. The purpose of document exchanges is to aid in the
process of developing the party’s theory of the case and establish evidence supporting that
theory. Because this process is managed by attorneys, systems whose procedures include
information or documentary exchanges impose on attorneys specific ethical obligations to
ensure the integrity of the process. One of the basic obligations is to comply with a valid
91 Peter Ashford, ‘Rule Changes Affecting the International Arbitration Community’, 22 Am. Rev. Int’l
Arb. 87, 101 (2011).

92 See Van Houtte, ‘Counsel-Witness Relations’ 460.
93 Continued expressions of scepticism from some civil law trained lawyers about US techniques perhaps
suggest at least some civilian lawyers feel a continued ethical pull from the traditions of their home ethical rules.
See Van Houtte, ‘Counsel-Witness Relations’ 460.
94 In the United States, it can also include Interrogatories (written questions regarding issues in the case)
and Requests for Admissions (written requests that the opposing party concede particular issues of fact or law),
which the opposing party, usually through counsel, is required to respond to.
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document request, even if it requires turning over to an adversary documents that are harm-
ful to a party’s case or interests.95
3.49 This obligation is part of a larger duty that attorneys have to ensure that parties comply with
valid document requests. For example, Article IX(15) of the Canadian Code of Professional
Conduct requires that a lawyer ‘explain to the client the necessity of making full disclosure
of all documents relating to any matter in issue’ and ‘assist the client in fulfilling the obliga-
tion to make full disclosure’.96 English procedural rules go further, obliging solicitors ‘to take
positive steps to ensure that their clients appreciate . . . not only the duties of disclosure and
inspection . . . but also the importance of not destroying documents which might possibly
have to be disclosed’ and taking steps to ‘ensure that documents are preserved’.97 In the
United States, counsel have been sanctioned for failing to ensure a client’s compliance.98
3.50 These duties are extensive. In some systems, the duty to preserve documents is triggered by a
mere threat of litigation in which disclosure of such documents may be required.99 In recent
years, the advent of so-called e-discovery, which involves requests for exchanges of email and
electronic documents, have ushered in a host of new ethical issues.100 Similarly, the practice
of offshore or outsourced document management, meaning the sub-contracting of docu-
ment review to legal service providers (in, for example, India),101 has generated myriad new
ethical issues relating to compliance, competence, conflicts of interest, and protection of
confidential information at outsourcing facilities.102
3.51 Because the practice of exchanging of documents creates a risk of inadvertent disclosure of
privileged documents, systems with such practices also generally impose on attorneys ethi-
cal obligations related to inadvertent disclosures. Ethical rules in England, Australia, and
Canada all require that an attorney receiving inadvertently produced confidential documents
return or destroy the documents, generally prohibit them from using such documents, and
sometimes require that the opposing counsel be notified.103 In the United States, where
95 In reality, this ethical obligation is implicit in general obligations. It only becomes identified as an inde-
pendent obligation when it is viewed in comparison to other systems in which counsel do not have an obligation
to produce documents that are contrary to a client’s interests.
96
Canadian Bar Association, Code of Professional Conduct, Art. IX(15).
97 Civil Procedure Rules 1998, Rule 31.10.6 (Eng.).
98
See Play Visions, Inc. v Dollar Tree Stores, Inc., 2011 WL 2292326 (W.D. Wash. 2011) (holding counsel
‘jointly and severally’ liable with his client for discovery sanctions where counsel ‘fail[ed] to assist and guide his
client’s production of discovery responses’).
99 See Cache Le Poudre Feeds, LLC v Land O’Lakes, Inc., 244 F.R.D. 614, 621–2 (D. Colo. 2007). In Cache
Le Poudre, the court observed that simply issuing an order to retain documents in light of potential litigation is
not sufficient to discharge an attorney’s duty. Instead, the court held, ‘[c]ounsel retains an on-going responsibil-
ity to take appropriate measures to ensure that the client has provided all available information and documents
which are responsive to discovery requests’. Cache Le Poudre Feeds, LLC v Land O’Lakes, Inc., 630.
100 For a discussion of these ethical issues in the United States system, see Debra Lyn Bassett, ‘E-Pitfalls:
Ethics and E-Discovery’, 36 N. Ky. L. Rev. 449 (2009).

101 See Jayanth K. Krishnan, ‘Outsourcing and the Globalizing Legal Profession’, 48 Wm. & Mary L. Rev.
2189, 2205–12 (2007) (discussing the benefits of outsourcing legal work to India).
102 For an extended analysis of the ethical issues raised in these opinions and more generally in offshoring
discovery and litigation document management, see generally, Joshua A. Bachrach, ‘Offshore Outsourcing and
Risk Management: Proposing Prospective Limitation of Liability Agreements Under Model Rule 1.8(h)’, 21
Geo. J. Legal Ethics 631 (2008); Mary C. Daly and Carole Silver, ‘Flattening The World of Legal Services? The
Ethical and Liability Minefields of Offshoring Legal and Law-Related Services’, 38 Geo. J. Int’l L. 401 (2007).
103 For example, Rules 31.1–31.2 of the Australian Solicitors Conduct Rules state that ‘a solicitor to whom
material known or reasonably suspected to be confidential is disclosed . . . must not use the material and must
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ethical rules are imposed at the state level, there is wide variance among jurisdictions
regarding whether an attorney receiving confidential information must notify opposing
counsel, refrain from reading the information, return the document or refrain from using
the document, or some combination of all of these.104
In most other countries, there is no similar pre-trial disclosure process. Instead, each party 3.52
presents to the court those documents in its possession that support its case. Parties are not
requested or expected to, and do not, produce documents that are harmful to their case. In
certain situations, a party may request that the court order an opposing party to produce a
document, but the conditions under which such a request can be made are exceedingly nar-
row. Normally, a requesting party is required to indicate the author, date, topic, and poten-
tially other details of the document, as well as its relevance to the case. Once this burden
has been satisfied and the court orders disclosure, a party and its attorney have little or no
discretion. Not surprisingly, in systems following this approach to document disclosure, there
are generally no express ethical rules relating directly to the process of document disclosure.
Just as there is no need to regulate the details of pre-testimonial witness communication in
systems where that practice is categorically prohibited, there is no need to regulate the details
of pre-trial exchange of information in systems where that process does not occur. As a result,
attorneys from those systems have no express ethical obligations to preserve or produce docu-
ments, to guide clients in complying with orders to produce, to produce documents that are
harmful to a client’s case, or to respond to inadvertently produced confidential documents.
In recent years, document and information exchange has become a more normal practice 3.53
in international arbitration.105 The scope and nature of such exchanges can vary considera-
bly, depending on the identity of the arbitrators, parties, and counsel.106 It is fair to estimate,
. . . return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure
was inadvertent’, take steps to prevent misuse of the material, and in certain circumstances notify opposing
counsel.
104 Compare Fla. Bar Ass’n, Prof ’l Ethics Op. 93-3 (1994) (imposing obligation to notify only); with Colo.
Rules of Prof ’l Conduct, R. 4.4(b), (c), cmt. 3; Colo. Bar Ass’n, Formal Ethics Op. 108 (2000) (requiring
notice and return of document where inadvertence was known, only notice where inadvertence not known,
and refraining from viewing document where sender communicates inadvertence to recipient prior to viewing
the document); with D.C. Bar Op. 256: ‘Inadvertent Disclosure of Privileged Material to Opposing Counsel’
(1995), <http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion256.cfm> (requiring notice
and return, but permitting reading and use); with Phila. Bar Ass’n, Ethics Op. 94-3 (1994) (finding that a law-
yer has no duty to return a fax inadvertently sent by opposing counsel); with Md. State bar Ass’n, Op. 2007–09:
‘Ethics of Viewing and/or Using Metadata’ (2007) (not imposing even a duty to notify opposing counsel). See
also Model Rules of Prof ’l Conduct, R. 4.4 (2009) (requiring a receiving lawyer to ‘promptly notify’ the sender);
Am. Bar Ass’n, Formal Op. 06-440: ‘Unsolicited Receipt of Privileged or Confidential Materials: Withdrawal
of Formal Opinion 94–382’ (2006) (requiring that an attorney notify ‘a lawyer who knows or reasonably should
know that [a] document was inadvertently sent shall promptly notify the sender. The Rule does not require
refraining from reviewing the materials or abiding by instructions of sender.’).
105
As Rusty Park explains: ‘American lawyers often appear to their foreign colleagues as asserting a right to
shoot first and aim later, asking how they are to prove a claim without the other side’s documents. Continental
lawyers reply that evidence should be collected before claims are filed. . . . In international arbitration, the differ-
ent cultural starting points have produced an accommodation in which truth-seeking will be tempered against
the objectives of speed and economy.’ William W. Park, ‘Arbitrators and Accuracy’, 849 PLI/Lit 279 (2011).
106 Bernardo M. Cremades, ‘Overcoming the Clash of Legal Cultures: The Role of Interactive Arbitration’,
in Stefan N. Frommel and Barry A.K. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old
Issues and New Trends (1999) 147, 161 (suggesting that arbitrators must distinguish the cultural background
of parties in order to effectively preside over proceedings to which parties come with differing approaches to
pre-testimonial communication with witnesses).
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however, that current conventional practice in international arbitrations involves more document
exchange than would be typically required in a German or French court proceeding.107
Modern international arbitration practice adopts an intermediary position between the differ-
ent legal traditions. It permits some document exchange, but in a much more limited manner
than the massive and open-ended exchanges that are permitted under US procedural rules.108
3.54 While this approach appears to bridge the procedural gap, it creates an ethical gap. As
described previously, document exchange procedures necessarily imply certain ethical obli-
gations for counsel to ensure their proper functioning.109 Civil law-trained lawyers who
are unaccustomed to document exchanges, and perhaps still regard them as an anathema,
have no inherent ethical orientation regarding compliance or treatment of inadvertently
produced confidential documents. As one commentator explains, a ‘Latin American jurist
. . . feel[s] legitimately proud of retaining those [documents] which in one way or another
may harm him’.110 Retaining those documents, however, is regarded by common law-trained
attorneys as so egregious that it is as if ‘parties or their counsel . . . commit[ted] perjury or
otherwise ma[de] misrepresentations to the arbitrators’.111 Unlike pre-testimonial commu-
nication with witnesses, instead of narrowing the ‘cultural divide’, the differing perspectives
over attorney obligations regarding document exchange appears to be expanding. In particu-
lar, the debate over whether document exchange should include electronic documents has
raised the stakes.112 Not surprisingly, therefore, differences over ethical obligations regarding
document exchanges have prompted calls for clarification of the matter.
3. Conflicts of interest
3.55 Another area in which different national ethical standards collide in international arbitral pro-
ceedings is with regard to conflicts of interest.113 In this area, there is the now-familiar common
107 Peter Leaver and Henry Forbes Smith, ‘The British Perspective and Practice of Advocacy’, in Doak
Bishop and Edward G. Kehoe, (eds.), The Art of Advocacy in International Arbitration, 2nd edn. (2010) 492
(‘International arbitration often follows an approach by which parties may request production of categories of
documents where this [level of disclosure] is proportionate to the case.’); Horacio Grigera Naon, ‘Document
Production in International Commercial Arbitration: a Latin American Perspective’, ICC 2006 Special
Supplement, 15.
108 Alan Scott Rau and Edward F. Sherman, ‘ Tradition and Innovation in International Arbitration
Procedure’, 30 Tex. Int’l L.J. 89, 103 (1995) (‘International arbitrators, in their discretion, often order discovery
of critical documents, but generally will not allow broad US-style discovery requests.’).
109
See Steven A. Hammond, ‘Spoliation in International Arbitration: Is It Time to Reconsider the “Dirty
Wars” of the International Arbitral Process?’ 3:1 Disp. Res. Int’l 10 (2009) (‘[I]t is easy to see that the need for
dispute resolution systems to protect against the wilful destruction or withholding of evidence springs from the
same policies that underlie these universal ethical norms of truthfulness and fairness.’).
110
Bernardo M. Cremedas, ‘Overcoming the Clash of Legal Cultures: The Role of Interactive Arbitration’,
14 J. Arb. Int’l 164, 166 (1998).
111
See, e.g., Hammond, ‘Spoliation in International Arbitration’ 5, 10 (decrying the ‘negligent, reckless or
wilful destruction of evidence’ in international arbitration).
112 Compare Michael E. Schneider, ‘A Civil Law Perspective: “Forget E-Discovery”’, in David J. Howell
(ed.), Electronic Disclosure in International Arbitration (2008) 13; with David Howell, ‘Developments in
Electronic Disclosure in International Arbitration’, Disp. Res. Int’l, 3:2 (2009) (noting that the issue has ‘pro-
voked vigorous expression of a wide range of views, from those that believe that the challenge can be usefully
met by guidelines, protocols or institutional rule changes to those who believe that existing rules make adequate
provision for electronic disclosure and that additional measures are both unnecessary and inappropriate’);
Nicholas Tse and Natasha Peter, ‘Confronting the Matrix: Do the IBA Rules Require Amendment to Deal With
Challenges Posed by Electronically Stored Information’, 74 Arb. 28 (February 2008); Robert H. Smit and
Tyler B. Robinson, ‘E-Disclosure in International Arbitration’, 24 Arb. Int’l 105, 106–9 (2008).
113 This chapter focuses on conflicts of interest for counsel. National conceptions of what constitutes a
conflict of interest for counsel inevitably affect conceptions of what constitutes a conflict of interest for an
arbitrator, which was discussed previously in Chapter 2.
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law/civil law divide, but American attorneys also once again represent the most extreme rules,
which not did fit well with established traditions. US codes regulate a range of activities that
might give rise to a conflict of interest, such as accepting client gifts,114 engaging in business
dealings with clients,115 and receiving payment for services from another party.116 European
codes appear to be silent on such matters, limiting their regulation of conflicts of interest to
situations involving dual representation. This omission is likely related to the fact that much
attorney regulation in Europe, particularly with regard to conflicts of interest, remains informal.
By comparison in France, for example, conflicts of interest have been generally prohibited 3.56
since Saint Louis IX in 1258, but the concept of a ‘conflict of interest’ was only recently given
a formal name (conflit d’intêrets).117 According to one scholar, this denomination may simply
be a translation of the English term.118 In the deontological rules of the Paris Bar Association,
the issue merits only a one-sentence prohibition119 and modern treatises dispose of it in a
few pages.120 It derives from the ‘duty of delicacy’,121 which suggests that, at least originally,
it may have had more to do with good manners than notions of professional competence.
As one commentator describes, in Europe even in recent years ‘conflicts are a matter of ethics, 3.57
not law. Conflicts are a matter of your relationship with your client’; according to another
scholar, ‘this difference results from the later development of legal ethics in Europe, but that
delay in that development has permitted what may be a better measured response’.122 In light
of the more flexible standards in Europe, stringent US rules regarding conflicts of interest are
blamed for creating a ‘competitive disadvantage for American-based international law firms’,
as well as being more generally out of step with modern large-firm practice.123 That said, the
merging of US firms with local firms in Europe, Asia, and South America has resulted in a
spread of US conflicts standards to those firms.124
114
While not a model of clarity, Model Rule 1.8 views client gifts with extreme suspicion, reflecting the
long-standing scepticism in Anglo-American law of client gifts to attorneys. See Wolfram, Modern Legal Ethics
(1986) § 8.12.2, 486.
115 The Disciplinary Rules prohibit lawyers from entering into business transactions with clients in which
they have differing interests, unless the client consents after full disclosure. See Wolfram, Modern Legal Ethics,
§ 8.11.2, 480. Courts have expanded application of the rule to apply even when the lawyer was not performing
legal services for the client and to require that the attorney advise the client to seek independent legal advice on
the matter. § 8.11.2, 480 and n. 80.
116 Disciplinary Rule 5-107(A) ‘prohibits a lawyer from accepting compensation or anything else of value
from a person other than the client for representing a client unless the client gives informed consent’. Wolfram,
Modern Legal Ethics, § 8.8.2, 443.
117 John Leubsdorf, Man in His Original Dignity: Legal Ethics in France (2001) 42.
118
Leubsdorf, Man in His Original Dignity 42.
119 ‘Elle stipule qu’aucun avocat ne peut conseiller ou défendre deux parties dont les intérêts pourraient être amenés
à s’opposer.’ This provision translates to mean that an attorney is not permitted to counsel or defend two parties
whose interests can be opposed to each other (translation of the author).
120 Leubsdorf, Man in His Original Dignity 42 and n. 101.
121 Leubsdorf, Man in His Original Dignity 42.
122 Justin Castillo, ‘International Law Practice in the 1990s: Issues of Law, Policy, and Professional Ethics’,
86 Am. Soc’y Int’l L. Proc. 272, 283 (1992), cited in Mary C. Daly, ‘The Dichotomy Between Standards and
Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and
Foreign Lawyers’, 32 Vand. J. Transnat’l L. 1117, 1150 (1999); Leubsdorf, Man in His Original Dignity 42.
123 Eli Wald, ‘Federalizing Legal Ethics, Nationalizing Law Practice, and the Future of the American Legal
Profession in a Global Age’, 48 San Diego L. Rev. 489 (2011).

124 See Roger C. Cramton, ‘A Comparative Look at Ethics Rules and Professional Ideologies in a Time of
Change’, in John J. Barceló and Roger C. Cramton (eds.), Lawyers’ Practice & Ideals: A Comparative View (1999)
267, 274 (advocating US-type conflicts rules for interdisciplinary firms expanding across national lines).
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3.58 The discretion afforded European lawyers in evaluating conflicts of interest125 is exemplified
in the Code of Conduct drafted by the CCBE. Under the CCBE Code, an attorney is forbid-
den from accepting a new client only if there would be a ‘risk’ of breach of a former client’s
confidences or if the lawyer’s knowledge of the former client would give an ‘unfair’ advantage
to the new client.126 This formulation appears to leave substantial discretion to the attorney
to determine whether confidences can be maintained and/or whether an advantage to a new
client would be ‘unfair’. It is easy to imagine that a European attorney could decide that
even if two matters are related and adverse, the risk of a breach of confidence and unfairness
is low.127
3.59 Even when written rules appear to be textually similar, actual national practices may differ
significantly, making comparison between them more complicated. Two empirical studies
evaluated levels of compliance with conflict of interest rules, one focusing on American
lawyers and the other on British solicitors. Although both systems have relatively similar
and detailed rules regarding conflicts of interest, a comparison of the two studies suggests
that textual similarity conceals significant divergences in their application.128 While the
studies approached each legal community separately, the inescapable conclusion from a
comparison of the two studies is that Americans are, in fact, rather scrupulous in their
efforts to comply with conflict rules, even when such careful adherence is contrary to their
business interests. English solicitors, on the other hand, apparently routinely disregard
what they consider to be obsolescent rules. Various different hypotheses may account for
these disparate rates of compliance, including varied enforcement mechanisms, the likeli-
hood of sanctions, client tolerance, conceptions of the possibility of genuine harm, and
the like. Whatever the reason, the larger point is that meaningful comparison of ethical
rules requires not only a comparison of black-letter texts, but also of how rules are applied
and enforced.129
3.60 These conceptual differences in the approach to conflicts of interest translate into the
allowances that different systems make for attorney discretion. In many European systems,
there is no rule of imputation.130 By contrast, Australian, Canadian, US, and New Zealand
125
Modern European codes of ethics also remain sparse or silent on many other issues that receive consider-
able attention in US codes and commentary, such as client gifts and third-party compensation.
126
Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers
(CCBE Code) art. 3.2 (2006), <http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_CCBE_
CoCpdf1_1382973057.pdf>.
127 The effect of broad, qualitative standards on discretion is particularly problematic because attorneys
must exercise this discretion against their own interest in accepting the representation. In this sense, attorney
discretion in evaluating conflicts of interest regarding new clients is similar to arbitrator standards for evaluating
potential conflicts and disclosure obligations. For a discussion of the risks associated with open-ended qualita-
tive disclosure standards for arbitrators, see Chapter 8.
128 See Nancy J. Moore, ‘Regulating Law Firm Conflicts in the 21st Century: Implications of the
Globalization of Legal Services and the Growth of the “Mega Firm”’, 18 Geo. J. Legal Ethics 521 (2005) (com-
paring Janine Griffiths-Baker, Serving Two Masters: Conflicts of Interest in the Modern Law Firm (2002) with
Susan Shapiro, Tangled Loyalties: Conflict of Interest in Legal Practice (2002)).
129
This observation is consistent with modern comparative law scholarship, which seeks to go beyond
‘phonebook comparisons’ of substantive laws. See Catherine A. Rogers, ‘Gulliver’s Troubled Travels, or The
Conundrum of Comparative Law’, 67 Geo. Wash. L. Rev. 159 (1998) (Review Essay); see also Mark C. Suchman
and Lauren B. Edelman, ‘Legal Rational Myths: The New Institutionalism and the Law and Society Tradition’,
21 Law & Soc. Inquiry 903, 907 (1996); Mary Ann Glendon, et al., Comparative Legal Traditions, 2nd edn.,
(1994) 11 (emphasizing the benefits of a functional approach examining law in action).
130
Geoffrey Hazard and Angelo Dondi, Legal Ethics: A Comparative Study (2004) 194.
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rules regarding conflicts of interest also include specific rules that impute the conflicts from
one member of a firm to all the other members.131 Imputation of conflicts serves several
functions.132 One important effect of imputation is that it reduces the discretion attorneys
can exercise in assessing the existence of a conflict.133 The US approach to conflicts of inter-
est has been characterized as compulsively pernickety.134 In the United States, lawyers are
disqualified from accepting employment of a new client whenever the interests of the new
client and an existing or former client are ‘materially adverse’ and the matters involved are
‘substantially related’. These blanket, objectively defined categories leave little discretion to
attorneys in evaluating the relative severity of a potential conflict. Instead, that discretion is
placed in the hands of clients, who can waive a potential conflict through written consent.
As with differing standards for information exchange and witness communication, the different 3.61
standards regarding conflicts of interest can generate significant disruption in arbitral proceed-
ings. A growing number of prominent recent examples have involved conflicts between
counsel and arbitrators. In the International Centre for Settlement of Investment Disputes
(ICSID) arbitration Hrvatska Elektroprivreda, d.d. v The Republic of Slovenia, shortly before
the hearing on the merits, the respondent disclosed that it had retained an English barrister
who was a member of the same barristers’ chambers at which the Tribunal’s President was a
‘door tenant’.135 The claimant sought to have the Tribunal disqualify the barrister from the
proceedings on the grounds that his presence created a conflict of interest with the President
of the Tribunal.136 In another ICSID case, the respondent sought to disqualify opposing
131
See Australian Solicitors’ Conduct Rules, R. 11.1 (2012) (‘A solicitor and a law practice must avoid con-
flicts between the duties owed to two or more current clients, except where permitted by this Rule.’); Code of
Prof ’l Conduct, ch. V, cmt. 15 (2009) (Can.) (for purposes of assessing conflicts of interest, ‘a client “is treated
as a client” of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the
client’s work’); Model Rules of Prof ’l Conduct, R. 1.10(a) (2009) (‘While lawyers are associated in a firm, none
of them shall knowingly represent a client when any one of them practising alone would be prohibited from
doing so by Rules 1.7 or 1.9’); Lawyers and Conveyancers Act, R. 6.2 (2008) (N.Z.) (Rules regarding conflict-
ing duties for more than one client apply ‘whenever lawyers who are members of the same practice act for
more than one party’.). cf. Solicitors’ Code of Conduct, R. 4 (2011) (UK); Janine Griffiths-Baker and Nancy J.
Moore, ‘Regulating Conflicts of Interest in Global Law Firms: Peace in Our Time?’ 80 Fordham L. Rev. 2541,
2552 (2012) (‘The [UK] fee-earner must personally hold confidential information, so there is no imputation
within the firm, and the lawyer is required to disclose only information that is “material”. . . . Moreover, even
if a fee-earner is in possession of “material” information, he or his firm may continue to act provided that the
information could be protected by the use of appropriate safeguards. This may even extend to acting without an
affected client’s consent if it would not be possible to obtain such agreement.’).
132
Restatement (Third) of the Law Governing Lawyers § 203 cmt. b (describing the reasons for imputation
as related to shared interests and confidential information among members of the same firm, as well as avoiding
the difficulties of proving an actual conflict).
133 There are legitimate questions of whether particularly the US approach to imputation is too broad,
particularly in a market dominated by mega law firms and in which attorneys change firms quite frequently.
See Eli Wald, ‘Lawyer Mobility and Legal Ethics: Resolving the Tension Between Confidentiality Requirements
and Contemporary Lawyers’ Career Paths’, 31 J. Legal Prof. 199, 227–8 and 272–7 (2007).
134
John Toulmin, ‘A Worldwide Common Code of Professional Ethics?’, 15 Fordham Int’l L. J. 673, 681
(1991/1992) (‘[T]he rules of professional conduct in the United States relating to conflicts of interest and
imputed disqualification are among the strictest in the world.’).
135
Hrvatska Elektroprivreda, d.d. v The Republic of Slovenia, ICSID Case No. ARB/05/24, Tribunal’s Ruling
regarding the participation of David Mildon QC in further stages of the proceedings of 6 May 2008, <http://
icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH8actionVal=showDoc8docId =DC950_
En8caseId=C69>. A ‘door tenant’ is a barrister or other legal practitioner who has been granted permission to
join a set of barristers’ chambers, and therefore be listed on their door, although working from premises outside
the chambers themselves.
136 Hrvatska Elektroprivreda d. d. [HEP] v The Republic of Slovenia, paras 10, 12.
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counsel based on the fact that he had formerly been an associate partner at the same law firm
as a member of the Tribunal.137
3.62 Alleged conflicts of interest are not limited to conflicts with members of the tribunal.
Consider, for example, an arbitration seated in Mexico between a US-Mexican joint ven-
ture against the Mexican joint venture partner, where the Mexican party is represented by
the same Mexican attorney who formerly represented the joint venture and who continues
to represent the Mexican party against the joint venture. Representation in a suit against a
former client is generally considered a prohibited, non-waivable conflict of interest under
US ethical rules, but would apparently be permitted under Mexican rules. The American
party would surely want to enforce its right to conflict-free representation, but can it
seek disqualification? Even assuming away the difficult questions of whether arbitrators
are competent to disqualify counsel and whether such matters are arbitrable, there are
complex questions about what rules should apply and what remedies are available. The
Mexican attorney can engage in the representation under Mexican ethical rules, but those
rules don’t apply in the arbitration and, the American party would argue, they do not
curtail its right to conflict-free representation. If the arbitrators decide that such a conflict
could call into question the legitimacy of the proceedings and consequently the potential
enforceability of the award, they face the difficult question of whether they can disqual-
ify counsel. While similar situations have arisen in individual arbitrations, there is scant
authority or published precedent.
3.63 In another ICSID case, the respondent sought to exclude opposing counsel from proceed-
ings based on an alleged conflict of interest arising from the prior representation of the
respondent in a related proceeding. While the power of tribunals to rule on such chal-
lenges will be taken up directly in Chapter 6, what is interesting about this final decision
is that the Committee concluded that it did not have any ‘deontological responsibilities’
and therefore ‘ha[d] no power to rule on an allegation of misconduct under any such pro-
fessional rules as may apply’.138 While it ultimately determined that there was insufficient
evidence to find a real risk of the disclosure of confidential information,139 the interesting
feature of the decision is that it felt compelled to rule on the issue to preserve ‘the fair
conduct of the proceedings before it’140 and determined that it had the ‘power and obliga-
tion to make sure that generally recognized principles relating to conflict of interest and the
protection of the confidentiality of information imparted by clients to their lawyers are
complied with’.141
4. Confidentiality and attorney-client privilege

3.64 International arbitration proceedings can also be disrupted by differing conceptions of attor-
neys’ confidentiality obligations. Confidentiality in civil law countries is both broader than
and narrower than those of the United States. In most civil law countries, the concept
of ‘professional secret’ protects information communicated by a client to an attorney, but
137
The Rompetrol Group N.V. v Romania (ICSID Case No. ARB/06/3), Decision on the Participation of a
Counsel (14 January 2010).
138 Fraport Ag Frankfurt Airport Servs. Worldwide v Philippines, ICSID Case No. ARB/03/25, Annulment
Proceeding, Decision on Application for Disqualification of Counsel, 18 Sept. 2008, para. 39.
139 Fraport Ag Frankfurt Airport Servs. Worldwide v Philippines, paras 41, 54–55.
140 Fraport Ag Frankfurt Airport Servs. Worldwide v Philippines, paras 38–39.
141 Fraport Ag Frankfurt Airport Servs. Worldwide v Philippines, para. 37 (emphasis added).
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not information communicated from the attorney to the client.142 More problematically,
from the US perspective, in many systems in-house attorneys are not regarded as having
any obligations of confidentiality,143 and thus do not enjoy the evidentiary privileges and
protections that would normally accompany such an obligation. This difference has come
as a rude awakening to many US firms doing business in Europe, even ones as large as
Microsoft, which was obliged to turn over to the EU Competition Authorities information
it had thought was covered by the attorney-client privilege.144
Another important distinction is that civil law attorneys are not obliged to maintain as secret 3.65
information they communicate to clients or communications they have with other attor-
neys, but they are required to treat as confidential information they learn about their clients
from other sources.145 By contrast, the common law notion of confidentiality incorporates
both communications from an attorney to a client and from a client to an attorney, but does
not extend to information learned from third parties.
Systems also diverge in how they limit the obligation of confidentiality when client wrong- 3.66
doing or potential wrongdoing is involved. Even among the ethical codes of the 50 states
in the United States, there is significant disagreement about the extent of confidentiality
obligations when a client has committed or is planning to commit criminal wrongdoing.146
At an international level, the level of disagreement in this area has been described as the most
significant threat to orderly transnational legal practice.
After years of studying the differences between national ethical codes, the Consultative 3.67
Committee of the CCBE summarized the problem as follows:
While there can be no doubt as to the essential principle of the duty of confidentiality, the
Consultative Committee has found that there are significant differences between member
countries as to the precise extent of lawyer’s rights and duties. These differences are sometimes
very subtle in character especially concerning the rights and duties of a lawyer vis-à-vis his cli-
ent, the courts in criminal cases and administrative authorities in fiscal cases.147
142 See Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Part I: An Analysis
of the CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 1, 28–29, 37 (1993); Carsten R. Eggers and Tobias
Trautner, ‘An Exploration of the Difference Between the American Notion of “Attorney-Client Privilege” and
the Obligations of “Professional Secrecy” in Germany’, 7 Int’l L. Practicum 23 (1994).
143
Some civil law systems do treat in-house counsel as lawyers, and accordingly impose obligations of confi-
dentiality and make their communications subject to privileges. The European Court of Justice has determined,
however, that at European Union level, in-house counsel will only be afforded those privileges recognized by all
Member States. See Case C-550/07 P, Akzo Nobel Chem. Ltd. v Eur. Comm’n., 2010 ECR I-08301; Case 155/79,
AM & S Eur. Ltd. v Comm’n, 1982 ECR 01575; David S. Jones, ‘The Privilege Stops at the Border, Even If A
Communication Keeps Going’, 8 S.C.J. Int’l L. & Bus. 297 (2012). Since not all Member States treat in-house
counsel as attorneys, none can claim the privilege in proceedings at the European Union level.
144 Triplett Mackintosh and Kristen M. Angus, ‘Conflict in Confidentiality: How E.U. Laws Leave In-House
Counsel Outside the Privilege’, 38 Int’l Law. 35 (2004).

145
Eggers and Trautner, ‘An Exploration of the Difference Between the American Notion of “Attorney-
Client Privilege” and the Obligations of “Professional Secrecy” in Germany’ 23.
146 Take, for example, a lawyer who is licensed in both New Jersey and the District of Columbia and who dis-
covers that a client has committed or intends to commit fraud. See Malini Majumdar, ‘Ethics in the International
Arena: The Need for Clarification’, 8 Geo. J. Legal Ethics 439, 440 (1995). Under the rules of the District of
Columbia, our hapless attorney is required to remain silent, while the rules of New Jersey compel him or her to
reveal the client’s fraud. The choice-of-law provisions in Model Rule 8.5 attempt to resolve the problem, but even
with regard to domestic practice, its solution has been called unsatisfactory and has prompted calls for national
ethical rules that will apply in all jurisdictions. See Mary C. Daly, ‘Resolving Ethical Conflicts in Multinational
Practice—Is Model Rule 8.5 the Answer, an Answer or No Answer at All?’ 36 S. Tex. L. Rev. 715, 720 (1995).
147 See Consultative Committee of the Bars and Law Societies of the European Community, ‘The
Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies of the
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In making the CCBE Code, European regulators have identified the problem, but not made
any real progress toward resolving it. The CCBE Code fails to acknowledge explicitly that
there is a tension between obligations to disclose wrongdoing and obligations to maintain
client secrets, let alone to acknowledge that systems resolve the tension differently.148
3.68 Apart from the variances in the duty to maintain client confidences, many systems impose
on attorneys other confidentiality requirements that either do not exist or are in tension
with other ethical obligations in different systems. For instance, in many Continental civil
law systems, such as Italy, France, and Portugal (though not Germany), as well as the United
Kingdom, communications between opposing counsel can be regarded as confidential.149
Upon receiving a communication marked ‘confidential’, or in French ‘sous la foi du Palais’,
the receiving attorney must maintain the communication as confidential and is even pro-
hibited from sending copies to his or her own client.150 In the United States, treating as
confidential communications from opposing counsel could conflict with an attorney’s obli-
gations to keep clients informed, particularly if the communication involved refers to a
potential settlement.
3.69 It is easy to foresee how such different rules could play out in an international arbitration. In
one actual and possibly typical example, British counsel sent its American opposing counsel
a ‘Confidential’ letter that contained an admission regarding a fact otherwise difficult to
prove. When the American party cited it to the tribunal in a submission, the British party
protested vigorously, calling ethical foul. The American party responded that it did not know
about and was not bound by the British ethical rule. The cold reality is that whether such
conduct is treated as appropriate or unethical in the arbitral proceedings will depend wholly
on who the arbitrators are and what their ad hoc calculus is. In other words, counsel (and
their clients) may bear the negative consequences of ex post application of an ethical rule that
they did not anticipate and that, if known ex ante, could have been planned for.
5. Ex parte communications
3.70 The nature and extent of permissible ex parte communications between parties and arbitrators
is another area of significant disagreement and resulting confusion. In most civil law systems,
it is not necessarily presumed that both parties will always be present during proceedings with
the judge. If, for example, a German attorney arrived at a hearing at which opposing counsel
was either absent or late in arriving, it would be considered perfectly appropriate for the judge
to discuss with the present attorney various aspects of the case.151 In the United States, the
same conduct might well result in a motion to disqualify the judge and an ethics complaint
against the lawyer. US judicial and attorney ethics entail almost absolute restrictions against
European Community’, 1 (1977), <http://www.ccbe.org/fileadmin/user_upload/NTCdocument/perugia_

enpdf1_1182334218.pdf>.
148 See Terry, ‘An Introduction to the European Community’s Legal Ethics Part I’ 28–29 (noting that the
CCBE Code imposes seemingly inconsistent provisions, which suggest without expressly acknowledging that,
although phrased in absolute terms, the obligation of confidentiality may have limits).
149 John Leubsdorf, Man in His Original Dignity: Legal Ethics in France (2001) 20, 23. (‘Even today, the
English bar does not require its members to communicate with clients or follow their instructions.’)
150 Terry, ‘An Introduction to the European Community’s Legal Ethics Part I’ 85.
151
See, e.g., Code of Conduct—Germany, § 8.3 (‘A lawyer may contact or submit documents or exhibits
to a judge without the knowledge of the lawyer(s) or the opposing client(s) in the case.’), cited in Terry, ‘An
Introduction to the European Community’s Legal Ethics Part I’ 36 n. 159, 37–8, and n. 158 (noting that in
many European countries ‘ex parte contact with the court on “nonfundamental” issues is not prohibited’).
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ex parte communications, except in very rare procedural contexts.152 Judith Resnik has dem-
onstrated that rigid prohibitions against ex parte communications may be softening as judges
are assuming a more ‘managerial’ function in the US system. Even new-fangled practices,
however, usually rely on advance, express party consent to the ex parte communications.153
Based on these national judicial practices, it would be reasonable to assume that when 3.71
German and American attorneys are together in international arbitration contexts, it is the
American attorneys who studiously avoid ex parte contacts, whereas civilian trained lawyers
would demonstrate a greater willingness to engage in such communications. But that is pre-
cisely contrary to what has happened, at least historically. In an unexpected counterpunch,
notwithstanding the stringent rules prohibiting ex parte communications in US court pro-
ceedings, domestic US arbitration rules permit parties to communicate throughout arbi-
tral proceedings with their party-appointed arbitrators, even about crucial issues involving
strategy.154 While Chinese and Continental systems tolerate some ex parte communication
in adjudication, the approach adopted by US domestic arbitration extends well beyond that
level.155 Ex parte communication with arbitrators, because of its obvious potential to disrupt
proceedings and taint results, is one area that has attracted a great deal of attention to the lack
of ethical regulation for lawyers in international arbitration.156
In yet another apparent about-face, American attorneys have been known to challenge 3.72
ex parte practices in the Chinese arbitration system, where the arbitrator, like the Chinese
judge, will act as a mediator in the same case in which the person presides as ultimate arbiter.157
152 See, e.g., Wolfram, Modern Legal Ethics § 11.3.3, 605–6.

153 See Judith Resnik, ‘Managerial Judges’, 96 Harv. L. Rev. 374, 390, 425–7 (1982) (demonstrating and
criticizing the modern trend of ‘managerial judging’).
154 Compare Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration
(1991) 225–6 (noting that ‘it is not unusual for there to be discussions with just one of the parties in respect
of procedural matters such as availability for future hearings’), and Code of Ethics for Arbitrators in Commercial
Disputes, Canons III(B)(I) (American Arbitration Ass’n, 1977) (permitting ex parte communications with any
member of the arbitral tribunal ‘concerning such matters as setting the time and place of hearings or mak-
ing other arrangements for the conduct of the proceedings’), and Code of Ethics for Arbitrators in Commercial
Disputes, Canon VII (permitting ex parte communications by party-appointed arbitrators as long as general
disclosure is made), with Rules of Ethics, R. 5.3 (International Bar Ass’n, 2001) (prohibiting ‘any unilateral
communications regarding the case’). For extended discussion of these rules, see W. Lawrence Craig et al.,
International Chamber of Commerce Arbitration, 3rd edn. (2000) § 13.07; M. Scott Donahey, ‘The Independence
and Neutrality of Arbitrators’, 9(4) J. Int’l Arb. 31, 41–2 (1992).
155 See, e.g., Lifecare Int’l, Inc. v CD Med., Inc., 68 F.3d 429 (11th Cir. 1995); Sunkist Soft Drinks, Inc. v
Sunkist Growers, Inc., 10 F.3d 753 (11th Cir. 1993) (finding no misconduct despite finding that party arbitra-
tor met with representatives and witnesses of appointing party before arbitration to plan strategy). These cases
involved domestic US arbitrations, which means that these objections did not arise because of conflicting cul-
tural perspectives on ex parte communication, but were challenges to the inherent fairness of proceedings when
parties are communicating with arbitrators.
156 Detlev Vagts, ‘International Legal Ethics and Professional Responsibility’, 92 Am. Soc. Int’l L. Proc. 378,
379 (1998) (reporting a panel discussion of a hypothetical case involving European and American lawyers in
an arbitration in Geneva that was governed by Swiss law); Ambassador Malcolm Wilkey, ‘The Practicalities of
Cross-Cultural Arbitration’, in Stefan N. Frommel and Barry A.K. Rider (eds.), Conflicting Legal Cultures in
Commercial Arbitration: Old Issues and New Trends (1999) 79, 86 (describing differing approaches to ex parte
communication as a problem in international arbitration that must be overcome).
157 Jun Ge, ‘Mediation, Arbitration and Litigation: Dispute Resolution in the People’s Republic of China’,
15 UCLA Pac. Basin L.J. 122, 127 (1996) (noting that the Chinese Civil Procedure Law requires judges to
conduct mediation if the parties do not object). This approach translates into arbitration rules in China and
other Asian countries. See Philip J. McConnaughay, ‘Rethinking the Role of Law and Contracts in East-West
Commercial Relationships’, 41 Va. J. Int’l L. 427, 452 n. 102 (2001).
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Under this practice, the Chinese judge-turned-mediator elicits information from the parties
in what—from an American perspective—are improper ex parte conversations. The substance
of these ex parte conversations may be (but is not necessarily) communicated to other parties,
and ‘[i]f mediation fails and the court elects to try the case, it may without further investigation
rely solely on the information acquired by the judge while he acted as a mediator’.158 As one
American commentator explains, these ex parte mediation efforts create a risk that ‘the arbitra-
tors may become biased or even corrupted . . .’.159 Another commentator described the conflict
in even more stark terms:
[The] role [of a mediator is] fundamentally repugnant to, and inconsistent with, that ascribed
by law to the traditional Anglo-Australian arbitrator . . . [For the same individual to serve both
as mediator, and then, if unsuccessful, as arbitrator is] fundamentally contrary to the require-
ments of natural justice.160
This complaint may seem somewhat ironic to those who have been stunned by historical
American ex parte excesses. Despite the fact that US practices have changed and presump-
tively preclude ex parte communications, many questions remain regarding the proper limits
of ex parte communications in international arbitrations, particularly regarding the arbitra-
tor selection process, as described in Chapter 2.
6. Creativity, aggression, and bad manners

3.73 For all the differences in specific ethical rules, the clashes most complained about by par-
ticipants and commentators are usually referred to as a conflict between professional ‘styles’
or legal cultures, rather than professional ethics. American attorneys are often accused of
interjecting excessive objections, bullying witnesses on cross-examination, concocting crea-
tive interpretations of legal rules, and strategically jockeying for procedural advantages. To
their European counterparts, the American approach to arbitration as ‘total warfare’161 is
disruptive and counterproductive. American attorneys are often regarded as ‘ungentlemanly’
if not barbaric.162
3.74 As Catherine Fox, general counsel for Alcatel Space Industries in France, complained, in
one arbitration an American attorney ‘constantly [said] “objection, objection, objection.”
Finally the Swiss president had to remind him he wasn’t in a US court.’163 This conduct
by Americans has led to a perceptible souring of in-house counsel to international arbitra-
tion generally.164 It is worth noting, however, that while European arbitration specialists are
158 Stanley B. Lubman, ‘Dispute Resolution in China After Deng Xiaoping: “Mao and Mediation”
Revisited’, 11 Colum. J. Asian L. 229, 337 (1997) (quoted in Philip J. McConnaughay, ‘Rethinking the Role of
Law and Contracts in East-West Commercial Relationships’, 41 Va. J. Int’l L. 427 n. 102 (2001)).
159
Randall Peerenboom, ‘The Evolving Regulatory Framework for Enforcement of Arbitral Awards in the
People’s Republic of China’, 1 Asian-Pac. L. & Pol’y J. 12, 23 (2000).
160 J.D. Fine, ‘Continuum or Chasm?: Can West Meet East?’ 6(4) J. Int’l Arb. 27, 30 (1989) (quoted in
Philip J. McConnaughay, ‘Rethinking the Role of Law and Contracts in East-West Commercial Relationships’,
41 Va. J. Int’l L. 427, 452 n. 103 (2001)).
161 See Nicolas C. Ulmer, ‘A Comment on “The ‘Americanization’ of International Arbitration?” ’ 16-6
Mealey’s Int’l Arb. Rep. 19, 24 (2001) (quoting Stephen R. Bond, ‘Meeting the Challenges of a Changing
World’, 3(3) J. Int’l Arb. 5, 6 (1986)).
162 See Ulmer, ‘A Comment on “The ‘Americanization’ of International Arbitration?” ’ 19, 24.
163
Rob Vosper, ‘Arbitration Anguish: European In-House Counsel Find Fault in International Commercial
Arbitrations’, Inside Counsel, 5 May 2006, <http://www.insidecounsel.com/Issues/2006/May%202006/Pages/
Arbitration-Anguish.aspx>.
164
See Vosper, ‘Arbitration Anguish’ 1.
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frustrated with American excesses, they too are subject to criticism from Asian parties and
attorneys for treating commercial disputes as a ‘zero-sum game’165 and being brazenly inflex-
ible in negotiation and mediation processes.166
These differences are usually considered to be matters of ‘style’ rather than questions of 3.75
ethics. But local and national ethical rules are intimately related to, and establish the outer
boundaries of, professional styles. Zealousness is considered a professional virtue and even an
ethical obligation in the United States.167 Vigorous cross-examination is not only regarded
as an ethical obligation, but often elevated as a lawyer’s highest ethical duty.168 Similarly,
with creative argumentation, under the Model Rules of Professional Conduct,169 American
attorneys are permitted ‘to urge any possible construction of the law favorable to his client,
without regard to his professional opinion as to the likelihood that the construction will
ultimately prevail.’ This ethically sanctioned room for creativity is bounded only by strategic
considerations and the stricture against wholly frivolous arguments in Federal Rule of Civil
Procedure 11.170
In Continental systems, as well as England, a similar degree of creativity would be con- 3.76
sidered professionally irresponsible, if not unethical. Zealousness is also regarded, not
as a professional virtue, but as ‘unbridled and ungentlemanly aggressivity and excess’ by
foreign attorneys.171 Rather than zealousness, ethical values in systems other than the US
usually emphasize the exercise of restraint and independent professional judgment. In an
extreme example, English barristers are, and (until recently) attorneys in some civil law
countries were, forbidden from forming law firms for fear that a partner’s independent
judgment could be stifled by those of other partners. The same argument was the justifi-
cation for not allowing attorneys employed as in-house counsel to be considered practis-
ing members of the bar—it would be impossible to remain professionally independent
of a client who directly employs you.172 This insistence on professional detachment also
explains why most Continental and other legal systems ethically prohibit contingency fee
representation.173
165
Fine, ‘Continuum or Chasm?’ 27, 32.
166
Fine, ‘Continuum or Chasm?’ 34.
167 John Burkoff, ‘Criminal Defense Ethics: Scope of Representation: Zealousness and Overzealousness’,
Criminal Defense Ethics, 2nd edn. (2002) § 5:2.

168 Tom Lininger, ‘Bearing the Cross’, 74 Fordham L. Rev. 1353, 1353 (2005).
169 The Model Rules of Professional Conduct are a set of model rules promulgated and revised by
the American Bar Association. The regulatory authorities of individual states implement and enforce these
rules.
170 Federal Rule of Civil Procedure 11(b) forces attorneys to certify that all claims, defences, and other legal
contentions are warranted by existing law or by a ‘nonfrivolous argument’. Georgene Vairo, ‘Rule 11 and the
Profession’, 67 Fordham L. Rev. 589, 600 (1998) (showing how circuit courts have relied upon Rule 11 to
attack unprofessional conduct); American Judicature Society, S. Burbank (ed.), Report of the Third Circuit Task
Force on Federal Rule of Civil Procedure (1989) 11 75–77 (citing successes of Rule 11 in curbing frivolous filings
in the Third Circuit); Thomas E. Willging, ‘The Rule 11 Sanctioning Process’, Federal Judicial Ctr., 174–5,
(1988) (concluding Rule 11 changed the role of the attorney by establishing a threshold obligation to determine
a factual basis and a plausible, arguable legal theory before proceeding).
171 Ulmer, ‘A Comment on “The ‘Americanization’ of International Arbitration?” ’ 19.
172 This rule applies in four EC Member States: Italy, France, Belgium, and Luxembourg. Sally R. Weaver,
‘Client Confidences in Disputes Between In-House Attorneys and Their Employer-Clients: Much Ado About
Nothing—Or Something?’ 30 U.C. Davis L. Rev. 483, 527 (1997).
173 Virginia G. Maurer et al., ‘Attorney Fee Arrangements: The US and Western European Perspectives’, 19
Nw. J. Int’l L. & Bus. 272, 320 (1999).
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3.77 These ethical prescriptions translate into professional protocols or styles, which often collide
in international arbitration. As Doak Bishop explains, a typical compliment from a British
judge may be that he acted ‘admirably understated, as usual’.174 To an attorney or arbitrator
trained in that system, an American attorney’s zeal during international arbitration pro-
ceedings would seem unseemly and improper. Similarly, an American attorney zealously
‘attempting to obtain perceived procedural advantages might [be] viewed as unreasonable
partly because it asks the arbitrator to rule in a manner inconsistent with the arbitrator’s duty
to treat the parties fairly and equally’.175 The ‘unreasonableness’ of the request will likely not
result in an adverse ruling on the immediate issue, but perhaps a deeper scepticism about
the attorney’s professional ethics, even though the offending conduct was inspired by the
paramount American ethical virtue of loyal zeal for the client.
3.78 One important area in which US courts are imposing stricter limits on zealousness and crea-
tivity is with respect to challenges to arbitral awards. US courts are demonstrating increased
willingness to sanction parties and counsel for bringing what are deemed to be frivolous
challenges to arbitral awards.176
7. Attorney fees
3.79 A final ethical issue of growing importance in international arbitration relates to how par-
ties compensate their attorneys and pay for the costs of bringing their claims. This section
addresses briefly the issue of contingency fee claims, and Chapter 5 takes up both contin-
gency fees and funding by third parties allowing a party who believes it has a meritorious
claim, but has insufficient funds to pursue that claim, to assert its rights by financing claims
outside the traditional pay-as-you-go model for hourly attorney fees.177
3.80 Different legal systems have starkly disparate views on contingency fee arrangements (or
‘conditional fees’, as they are known in some jurisdictions). Most of the world has tradi-
tionally opposed such fee agreements. This is perhaps why the CCBE Code specifically
prohibits contingency fees (pactum de quota litis).178 Within the EU, most jurisdictions
have remained steadfast in their opposition to contingency fees.179 Many other jurisdic-
tions, such as Uganda,180 also strictly prohibit contingency fees and fee-splitting. Opponents
of contingency fees claim the fees create perverse incentives for attorneys to act over-litigiously,
overcharge, and act contrary to client interests.181
174 Doak Bishop (ed.), The Art Of Advocacy in International Arbitration ( Juris Publishing, Inc., 2004) 445.
175 Bishop, (ed.), The Art Of Advocacy in International Arbitration 444.
176
B.L. Harbert Int’l v Hercules Steel Co., 441 F.3d 905, 913-14 (11th Cir. 2006), overruled on other grounds
(holding that courts must ‘ensure arbitration is an alternative to litigation, not an additional layer in a protracted
contest’, the court stated that it was ‘ready, willing, and able to consider imposing sanctions in appropriate
cases’); see also World Business Paradise, Inc. v Suntrust Bank, 403 Fed. Appx. 468 (11th Cir. 2010).
177 Lawrence S. Schaner and Thomas G. Appleman, ‘The Rise of 3rd-Party Litigation Funding’, Law 360, 21
Jan. 2011, <http://jenner.com/system/assets/publications/130/original/The_Rise_Of_3rd-Party_Litigation_

Funding.pdf?1312815913>.
178 CCBE Code of Conduct for European Lawyers, R 3.3.1 (2010) (‘A lawyer shall not be entitled to make
a pactum de quota litis.’).

179 Michael G. Faure et al., ‘No Cure, No Pay and Contingency Fees’, in Mark Tuil and Louis Visscher (eds.),
New Trends in Financing Civil Litigation in Europe: A Legal, Empirical, and Economic Analysis (2010) 33, 33–6.
180
See The Advocates Act, The Advocates (Professional Conduct Regulations), reg. 26 (Uganda).
181 See Lester Brickman, ‘Contingency Fees Without Contingencies: Hamlet Without the Prince of
Denmark?’ 37 UCLA L. Rev. 29, 32 (1989); Kevin M. Clermont and John D. Currivan, ‘Improving on the
Contingent Fee’, 63 Cornell L. Rev. 529, 532 (1978).
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In other countries contingency fees are generally permitted. In the US, in particular, reason- 3.81
able contingent fee arrangements have been generally valid, except in family and criminal
cases.182 In South Korea, contingent fee arrangements are similarly common, even in family
and criminal cases.183 And contingent-like fees have been permitted, though very limitedly, in
other countries such as Australia, Canada, Denmark, France, Ireland, Japan, New Zealand,
Portugal, Scotland, and Thailand.184
Proponents of contingency fees argue that, due to the high initial cost of bringing certain 3.82
types of lawsuits (such as personal injury), contingent fees allow the less financially advan-
taged an opportunity to obtain justice.185 Recently, many States traditionally opposed
to contingent arrangements have been loosening their restrictions. For one, in 2008,
the German parliament passed an amendment to the Federal Lawyers’ Act authorizing
lawyers and their clients to agree on contingency fees in specific situations.186 Similarly,
South Africa, England and Wales, and Spain187 have abolished prohibitions within the
past 15 years.
Though contingency fees are traditionally used in tort and employment cases,188 their use 3.83
by commercial organizations in international commercial disputes has grown in recent
years, particularly investment arbitration.189 In enforcement of foreign judgments, some
jurisdictions have historically refused to enforce judgments that were procured through
182 See Model Rules of Prof ’l Conduct, R. 1.5(d) (2009). See also F.D.I.C. v Bender, 127 F.3d 58 (D.C. Cir.
1997) (contingent fee agreements in District of Columbia are entirely permissible as long as they meet certain
requirements, and are not invalid for any public policy reason); Cappel v Adams, 434 F.2d 1278, 1280 (5th Cir.
1970) (‘Contingent fee contracts have long been commonly accepted in the United States in civil proceedings
to enforce claims’).
183
See Lee, Gyooho, ‘Cost and Fee Allocation Rules in Korean Civil Procedure’, 10 J. Korean L. 65, 85
(2010). In 2007, the Korean legislature rejected a bill that would have restricted contingency fees in criminal
cases.
184
See Kyung Hwan Baik and In-Gyu Kim, ‘Contingent Fees Versus Legal Expenses Insurance’, 27 Int’l
Rev. L. & Econ. 351, 352 n. 1 (2007); W. Kent Davis, ‘The International View of Attorney Fees in Civil Suits:
Why Is the United States the “Odd Man Out” in How It Pays Its Lawyers?’ 16 Ariz. J. Int’l & Comp. L. 361,
383 (1999).
185
See, e.g., Liberty Mut. Ins. Co. v Ameta & Co., 564 F.2d 1097, 1105 (4th Cir. 1977) (‘[S]ound public
policy favor[s] the contingent fee as a method for those less financially advantaged to vindicate their substantive
rights.’).
186 See Bundesrechtsanwaltsordnung [Federal Lawyers’ Act], 12 June 2011, § 49b(2) (Ger.), <http://www.
gesetze-im-internet.de/bundesrecht/brao/gesamt.pdf>; Gesetz zur Neuregelung des Verbots der Vereinbarung

von Erfolgshonoraren [Law Amending the Prohibition of the Agreement of Contingency Fees], 12 June
2008, BGBl. I 1000, <http://www.buzer.de/gesetz/8247/index.htm>; Gerhard Wagner, ‘Litigation Costs
and Their Recovery: The German Experience’, 28 Civ. Just. Q. 367, 378–9 (2009) (‘Contingency fees
are permissible if, and only if, the client would otherwise be deterred from asserting his rights due to
his financial situation and his attitude towards risk. Like any other agreement on remuneration which
derogates from the statutory fee schedule, the agreement of a contingency fee must meet strict formal
requirements.’).
187 See Carlos Gómez Ligüerre and Carlos Alb. Ruiz García, ‘Lawyers’ Fees, Competition Law and
Contingent Fees’, 1 InDret (2009), <http://ssrn.com/abstract=1368656> (‘[O]n November 4th, 2008, the
Spanish Supreme Court . . . quashed the prohibition [against contingency fees] under the reasoning that it
affected competition by restricting the attorney and its client to freely set the price of the legal assistance and,
therefore, imposing indirectly a minimum fee.’).
188
See Rogers, ‘Fit and Function in Legal Ethics’ 366 n. 116.
189 See B.M. Cremades, Jr, ‘Third Party Litigation Funding: Investing in Arbitration’, 8(4) Transnat’l Disp.
Mgmt., 2 (2011), <http://www.transnational-dispute-management.com.ezaccess.libraries.psu.edu/article.

asp?key=1743>.
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contingency fee arrangements. To date, arbitral awards have been largely impervious to
such public policy challenges, except in exceptional circumstances.190
C. Internationalization and enforcement

3.84 The lack of effective counsel regulation in international arbitration is no longer regarded as a
minor problem that can be ignored. Imporant voices have acknowledged that it is a potential
crisis that can threaten the legitimacy of international arbitration.191 The need for systematic
analysis and redress is no longer debatable.192
1. Existing international standards

3.85 The long-standing need for international ethical guidance is evidenced by long-standing
efforts to redress the need with literally dozens of efforts at international codes of ethics.
Drafted in 1956 and 1977, respectively, the IBA International Code of Legal Ethics and the
CCBE Declaration of Perugia on the Principles of Professional Conduct were among the
first.193 Remarkable for their prescience, they are most accurately described as professional
notions rather than rules that provide any meaningful guidance.194
3.86 More recent efforts include the IBA ‘Core Values’ Resolution (1998) and the IBA General
Principles of the Legal Profession (2006), for which a new commentary is currently being
190 See Ian Meredith and Sarah Aspinall, ‘Do Alternative Fee Arrangements Have a Place in International
Arbitration?’ 72 Arb. 22, 22 (2006). See also Michael D. Goldhaber, ‘How Much is Too Much?’ The American
Lawyer, 1 June 2010 (providing an account of the extraordinary arrangements for contingent fees that ended
up totalling over 80% of the party’s recovery).
191 Brower and Schill, ‘Regulating Counsel Conduct Before International Arbitral Tribunals’ (‘At issue may
ultimately be the legitimacy of the international arbitral system as a whole, in particular inasmuch as . . . [uni-
form legal ethics for counsel] operate not only retrospectively . . . but also prospectively as a mechanism of global
governance.’); see also Cairns, ‘Advocacy and the Functions of Lawyers in International Arbitration’, in M.Á.
Fernández-Ballesteros and D. Arias (eds.), Liber Amicorum Bernardo Cremades (2010) 291.
192 See Margaret Moses, Ethics in International Arbitration: Traps for the Unwary (2013) 5–6, <http://ssrn.
com/abstract=2114582>; (‘An international code could help provide transparency and certainty for proper
attorney conduct, help level the playing field, contribute to the fairness of the procedure, and improve the
confidence of the participants and the public in the arbitration process.’); Address by Doak Bishop at the
ICCA Congress on 26 May 2010 (‘Although there have been no catastrophes to this point, the International
Arbitration system is at least subject to reasonable criticism without its own transparent Code of Ethics, and
we need to ensure the future integrity and legitimacy of the system’.); see also Carolyn B. Lamm et al., ‘Has
the Time Come for an ICSID Code of Ethics for Counsel?’ in Karl Sauvant (ed.), 2009–2010 Y.B. Int’l Inv.
L. & Pol’y (2010); Cyrus Benson, ‘Can Professional Ethics Wait? The Need for Transparency in International
Arbitration’, 3 Disp. Resol. Int’l 78, 83 (2009); Doak Bishop and Margret Stevens, ‘Advocacy and Ethics in
International Arbitration: International Code of Ethics for Lawyers Practicing Before International Arbitral
Tribunals’, in Albert van den Berg (ed.), Arbitration Advocacy in Changing Times (ICCA Congress Series No.
15, 2010) 408–420; Gunther Horvath, ‘Guerrilla Tactics in Arbitration, An Ethical Battle: Is There Need
for a Universal Code of Ethics?’ in C. Klausegger, P. Klein, F. Kremslehner, A. Petsche, and N. Pitkowitz
(eds.), Austrian Yearbook on International Arbitration (Manz’sche Verlags- und Universitätsbuchhandlung,
2011) 297.
193 See Rogers, ‘Fit and Function’, note 17, 396; M. McCary, ‘Bridging Ethical Borders: International Legal
Ethics with an Islamic Perspective’, 35 Tex. Int’l L.J. 294 (2000).

194 See The Declaration on the Principles of Professional Conduct of the Bars and Law Societies of the
European Community (1977) [Perugia Principles]. The Perugia Principles contained only eight brief ethical
pronouncements, which have been described as an obscure ‘discourse on the function of a lawyer in society’ and
‘the nature of the rules of professional conduct’. Mary C. Daly, ‘The Dichotomy Between Standards and Rules:
A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and Foreign
Lawyers’, 32 Vand. J. Transnat’l L. 1159 (1999).
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Internationalization and enforcement
drafted.195 In 2005, the Bar Association Presidents’ Meeting developed a Statement of Core
Principles, now adopted by over 100 bar associations around the world. Meanwhile, the
Union Internationale des Avocats (UIA) developed the Turin Principles in 2002.196 While all
laudable efforts, most operate at a level of abstraction that provides little meaningful guid-
ance to the most salient issues that arise in international arbitral practice.197
Other modern international efforts within Europe have had a more tailored focus. The 3.87
CCBE developed a Code of Conduct (1988; revised in 2006)198 to provide guidance to
attorneys engaged in cross-border activities in Europe. While the CCBE Code is arguably
the most advanced and successful international code of ethics to date,199 it has little to say
about international arbitration practice per se.
In another more recent effort, the Study Group of the International Law Association on 3.88
the Practice and Procedure of International Courts and Tribunals published the ILA Hague
Principles on Ethical Standards for Counsel appearing Before International Courts and
Tribunals (ILA Principles).200 However, the ILA Principles only apply to arbitrations in
which one party is a State, meaning they are expressly inapplicable to most international
arbitrations. Like the CCBE Code and some of its international predecessors, the ILA
Principles deal mostly in abstractions and fail to articulate its own relationship to national
ethical rules, particularly when those rules conflict with the ILA Principles.201
The most important effort to date is the Guidelines developed by the IBA’s Task Force on 3.89
the Professional Conduct of Counsel in International Arbitration (IBA Task Force) that was
originally constituted in 2008. In 2013, the IBA Task Force finally released its Guidelines
for Party Representatives in International Arbitration.202 The Guidelines state explicitly that
195 The ‘Commentary on the General Principles of Conduct for the Legal Profession 2006’ was circulated
to all IBA member organizations in June 2010 for consultation. The resulting contributions and suggested
amendments were discussed in Vancouver by the BIC Policy Committee, and a further revision is now being
made. A first draft was to be submitted to the IBA Council for consideration in May 2011. See IBA, Bar Issues
Commission Projects, <http://www.ibanet.org/barassociations/BIC_projects.aspx>, 29 June 2011.
196 For a detailed survey of reform efforts to date, see Laurel S. Terry, ‘A “How To” Guide for Incorporating
Global and Comparative Perspectives into the Required Professional Responsibility Course’, 51 St. Louis
L.J. 1140–6 (2007).
197
For example, the Statement of Core Principles provides such broad admonitions as: ‘An independent
legal profession, without which there is no rule of law or freedom for the people.’ While obviously an important
principle, absent a meaningful definition of what constitutes ‘independent’ or ‘rule of law’, the general principle
provides little meaningful guidance. See H. W. Arthurs, ‘A Global Code of Ethics for the Transnational Legal
Field’, Legal Ethics 2, 59 (1999) (discussing the difficulties of creating a universal or global code of ethics and
criticizing such codes as ineffective).
198
Charter of Core Principles of the European Legal Profession and Code of Conduct for European
Lawyers (2006), [CCBE Code of Conduct], <http://www.ccbe.org/fileadmin/user_upload/NTCdocument/
EN_Code_of_conductp1_1249308118.pdf>.
199
See Terry, ‘An Introduction to the European Community’s Legal Ethics Part I’ 36–7 (1993).
200 Available at <http://www.ila-hq.org/en/Others/document-summary.cfm/docid/BC922372-0E35-
4E46-8DF149F0F5920E02>, 21 September 2011.

201 Article 2.4 of the CCBE Code provides: ‘When practising cross-border, a lawyer from another Member
State may be bound to comply with the professional rules of the Host Member State. Lawyers have a duty to
inform themselves as to the rules which will affect them in the performance of any particular activity.’ CCBE
Code of Conduct, art. 2.4.
202 Available at <http://www.ibanet.org/Document/Default.aspx?DocumentUid=6F0C57D7-E7A0-43AF-
B76E-714D9FE74D7F> (henceforth ‘Guidelines’). The change in title from the original name of the Task Force
(which referenced ‘Counsel Ethics’) is in recognition that not all persons who represent parties in international arbi-
tration are licensed attorneys. The fact that some representatives are not licensed anywhere, and hence are not subject
to any rules of professional conduct, is yet another reason why internationally applicable guidelines are needed.
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they are not intended to displace otherwise applicable mandatory laws, professional or disci-
plinary rules. Instead, they aim to provide a guide to conduct for representatives in interna-
tional arbitral proceedings. To that end, parties may adopt the Guidelines in whole or in part
by agreement, and arbitral tribunals may also apply the Guidelines at their discretion after
consultation with the parties.203
3.90 With regard to substantive provisions, the Guidelines generally prohibit ex parte com-
munications between a party representative and an arbitrator after the arbitrator has been
appointed, with some narrow, generally accepted exceptions. The Guidelines also set out a
principle of ‘candour and honesty’ in the presentation of evidence and submissions provided
to the tribunal. In addition, the Guidelines seek to make document disclosure more reliable
by obliging representatives to inform parties of their obligations to retain and disclose docu-
ments, by prohibiting the concealment of evidence from the tribunal, and by specifying that
counsel should not make any Request to Produce, or any objection to a Request to Produce,
for an improper purpose, such as to harass or cause unnecessary delay.204
3.91 Another important contribution of the Guidelines is their clarification about the role of
counsel in witness preparation. Guideline 24 states:
A Party Representative may, consistent with the principle that the evidence given should
reflect the Witness’s own account of relevant facts, events or circumstances, or the Expert’s
own analysis or opinion, meet or interact with Witnesses or Experts in order to discuss and
prepare their prospective testimony.
The Comment to Guideline 24 clarifies that:
As part of the preparation of testimony for the arbitration, a Party Representative may meet
with Witnesses . . . to discuss their prospective testimony [and] help a Witness in preparing
his or her own Witness Statement . . . Further, a Party Representative may assist a Witness in
preparing for their testimony in direct and cross-examination, including through practise
questions and answers (Guideline 24) [and review] the procedures through which testimony
will be elicited and preparation of both direct testimony and cross-examination. Such contacts
should however not alter the genuineness of the Witness . . . evidence, which should always
reflect the Witness’s own account of relevant facts, events or circumstances . . .
This approach to witnesses may be more appealing to counsel and parties from common law
traditions than from the civil law traditions, particularly its endorsement in the Comment of
contested practices, such as the rehearsal of practice answers and questions. Whatever limi-
tations may be attributed, however, the Guideline and Comment provide a clearer starting
point for tribunals and counsel than had existed before.
3.92 The IBA Guidelines on Party Representation are an important development, but they are
only part of a larger evolution. Effective regulation of counsel in international arbitration
is not simply a matter of drafting new rules or guidelines, but also developing an effective
enforcement regime.
2. Enforcement
3.93 The most obvious sources for enforcement are arbitral tribunals that are charged with
controlling the proceedings before them. There are, however, doctrinal and jurisdictional
203 See Guidelines 1 and 3.

204
See Guidelines 12–17.
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Internationalization and enforcement
questions about whether arbitral tribunals have the power to regulate or sanction counsel.
There are also questions about how such power for arbitral tribunals would interplay with
existing mechanisms for regulating attorneys within domestic legal systems.
The historical view has been that arbitral tribunals do not have the power to disqualify or 3.94
sanction counsel. For example, in 1992, the Iran-US Claims Tribunal ruled that it ‘does not
have the power to impose sanctions or disciplinary measures for the presentation of false
evidence’ by counsel.205 There are also domestic precedents, mostly in the United States, that
provide conflicting answers.206
In the absence of express powers, tribunals redress misconduct through a range of indirect 3.95
means.207 Tribunals rule on these issues when ordering exchange of documents or resolving
disputes about parties’ compliance with such obligations; making evidentiary and privilege
rulings;208 ruling on claims of alleged conflicts of interest and asserted privileges; granting,
denying, or declining to consider requests for disqualification;209 drawing (or refusing to
draw) adverse inferences based on alleged misconduct;210 and awarding costs and fees.211
Opposing counsel or parties have on several occasions also reported alleged misconduct to
national bar authorities, seeking sanctions against an errant attorney.212 Subject to arbi-
trators’ obligations of confidentiality, such reporting can also be undertaken by tribunals
themselves.213
In making decisions about attorney misconduct, and in the absence of formal rules and
powers, tribunals inevitably assess alleged misconduct based on individual members’ own
205 Norman Gabay v Islamic Republic of Iran, Case No. 771, Award (10 July 1991), 27 Iran-US C.T.R.
(1992), 40–8. Notably, this decision was by a single Chamber of the Tribunal, which was arguably constrained
by other areas of the Tribunal’s jurisprudence that limit the inherent jurisdictional powers.
206
These precedents and their effect on the prospect for self-regulation of counsel in international arbitra-
tion will be taken up more expressly and in greater detail in Chapter 6.
207
For guidance of how tribunals can manage proceedings to minimize attorney misconduct and its effects,
see Stephan Wilske, ‘Arbitration Guerrillas at the Gate: Preserving the Civility of Arbitral Proceedings when
the Going Gets (Extremely) Tough’, in Christian Klausegger et al. (eds.) Austrian Yearbook on International
Arbitration (Manz’sche Verlags- und Universitätsbuchhandlung, 2011), 320–21; Günther J. Horvath, ‘Guerrilla
Tactics in Arbitration, an Ethical Battle: Is There Need for a Universal Code of Ethics?’ in Christian Klausegger
et al. (eds.), Austrian Yearbook on International Arbitration (Manz’sche Verlags- und Universitätsbuchhandlung,
2011) 303–311.
208 Klaus-Peter Berger, ‘Evidentiary Privileges: Best Practice Standards Versus/and Arbitral Discretion’, 22
Arbitration International 501 (2006).

209 See Brower and Schill, ‘Regulating Counsel Conduct before International Arbitral Tribunals’ 491.
210
Vera van Houtte et al., ‘What’s New in European Arbitration?’ 62 Dispute Resolution Journal ( January
2008) 12 (describing findings by Swiss federal tribunal that drawing negative inferences for a party’s refusal to
produce documents was an element of the arbitrator’s assessment of the evidence); Stephan Wilske and Martin
Raible, ‘The Arbitrator as Guardian of International Public Policy: Should Arbitrators Go Beyond Solving Legal
Issues?’ in Catherine A. Rogers and Roger P. Alford (eds.), The Future of Investment Arbitration (2009) 269.
211 See Brower and Schill, ‘Regulating Counsel Conduct before International Arbitral Tribunals’ 491;
see also Stephan Schill, ‘Arbitration Risk and Effective Compliance—Cost-Shifting in Investment Treaty
Arbitration’, 7 J. World Investment & Trade, 653 (2006).
212 Tom Toulson, ‘Penalty recommended for lawyer accused of bribery in ICSID Case’, Global Arbitration
Review, 30 April 2010 (reporting that counsel voluntarily resigned from South African Bar Councils when
summoned to disciplinary proceedings for attempting to secure a bribe in exchange for persuading his client
to settle on favourable terms). Of course, not all allegations are made based on legitimate and well-founded
concerns about misconduct. See Alison Ross and Tom Toulson, ‘Freshfields faces complaint in US court’, Global
Arbitration Review, 31 March 2010.
213
See Wilske, ‘Arbitration Guerrillas at the Gate’, 331–2.
135
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sense of what constitutes proper attorney conduct, based on their own home ethical rules.
For example, a Dutch arbitrator faced with creative arguments by an American attorney may
conclude that the American attorney is inherently untrustworthy and may discount or disre-
gard arguments by that attorney.214 That same arbitrator may find offensive certain forms of
witness preparation and discount the reliability of that witness, even though the practices are
consistent with prevailing practices in the United States.215 Of greater concern, the tribunal
may be sanctioning a party for its attorney’s misconduct.
3.96 The need for direct powers over attorneys is perhaps best demonstrated in the North
American Free Trade Agreement (NAFTA) case Pope & Talbot v Canada.216 In that case, the
tribunal issued an order reprimanding counsel for a ‘highly reprehensible’ and either ‘inten-
tional’ or reckless breach of a confidentiality order.217 The tribunal did not consider itself
as having jurisdictional power to directly sanction counsel, but did seek to impose punish-
ments within the perceived limits of its authority. For example, it indicated that it ‘assume[d]
that [counsel] will make the present Decision public’, which harshly criticized counsel for
misconduct, a form of public shaming that in many contexts can be regarded as a form of
professional sanction.218 The tribunal also imposed costs on the party whose attorney was
responsible for the misconduct, and ‘expresse[d] the wish that [counsel] will recognize that it
is his conduct which has resulted in this [imposing of costs on his client] and, consequently,
he will voluntarily personally assume those costs’.219
3.97 The conventional wisdom about tribunal powers expressed in Pope & Talbot is that ‘the
consensual foundation of arbitration arguably militates against conferring authority on arbi-
trators to develop and enforce rules of professional conduct of counsel’.220 One of the most
vocal proponents of this view was Jan Paulsson: ‘[a]rbitrators are named to resolve disputes
between parties, not to police the conduct of their representatives, and therefore do not rule
on complaints of violations of codes of conduct’.221 While undoubtedly an important voice,
Paulsson’s view from 1992 seems to have been eclipsed by modern developments, includ-
ing the rise of guerrilla tactics. Notably, Paulsson was on the tribunal in HEP v Slovenia,
as described earlier in this chapter, but issued a vigorous dissent, criticizing the majority’s
approach as ‘nothing short of revolutionary’.
214
This example has been identified as a recurring problem in international tribunals. See Vagts, ‘The
International Legal Profession’ 260 (1996).
215 See Hans Van Houtte, ‘Counsel-Witness Relations and Professional Misconduct in Civil Law Systems’,
19 Arbitration International 461 (referring to certain aspects of US practices of witness preparation as ‘daring’;
others as ‘flagrant misbehaviour’).
216 Pope & Talbot v Canada, UNCITRAL/NAFTA, Decision on Confidentiality of 27 September 2000,
para. 6.
217 Pope & Talbot v Canada, para. 8.
218 Pope & Talbot v Canada, para. 13.
219
Pope & Talbot v Canada, para. 12.
220 Brower and Schill, ‘Regulating Counsel Conduct before International Arbitral Tribunals’ 495.
221 Jan Paulsson, ‘Standards of Conduct for Counsel in International Arbitration’, 3 Amer. Rev. Int’l. Arb.,
214 (1992). See also W. Laurence Craig, William K. Park, and Jan Paulsson, International Chamber of Commerce
Arbitration, 3rd edn. (Oxford University Press, 2001) s. 8.07 (concluding without explanation that arbitra-
tors do not have the power to hold parties in contempt); but see Thomas E. Carbonneau, ‘National Law and
the “Judicialization” of Arbitration: Manifest Destiny, Manifest Disregard or Manifest Error’, in Richard B.
Lillich and Charles N. Brower (eds.), International Arbitration in the 21st Century: Towards ‘Judicialization’ and
Uniformity? (1993) 129 (suggesting that arbitrators possess the inherent ‘authority to sanction a party’ for refus-
ing to cooperate in good faith with the arbitral proceeding).
136
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Conclusion
Although previously unthinkable,222 the prospect of tribunal-imposed sanctions for counsel 3.98
is also gaining momentum, particularly among arbitrators frustrated with the procedural
disruptions caused by misconduct and among parties frustrated by the related increase in
costs and delays.223 In response, tribunals are reportedly including in initial procedural
orders specific provisions that not only provide guidance on particular ethical issues, but
also reserve to the tribunal power to enforce those provisions. The IBA Guidelines on Party
Representation did not seek to break any new ground, but as noted at the beginning of this
chapter, and explored in greater detail in Chapter 6, the LCIA is working on its own code
of ethics that will reportedly be backed up by formal powers for tribunal enforcement. By
appending standards for counsel conduct to arbitral rules, the LCIA approach represents an
important innovation. Similarly, the new R-58 in the AAA Commercial Arbitration Rules,
also described at the beginning of this chapter, provides new powers for arbitrators to redress
misconduct, albeit only with respect to parties, not their representatives.
D. Conclusion
Back when international arbitration was governed by less formal procedures and adminis- 3.99
tered by a close-knit group of arbitration specialists, the absence of clear ethical guidance
was not a serious concern.224 Today, these conflicts and their consequences are impossible to
ignore. International arbitration cannot continue to operate with uncertain, unwritten, and
culturally variable assumptions about what constitutes proper conduct for attorneys.
Attorneys need more guidance about what constitutes proper conduct. Parties need to 3.100
understand better how to plan their legal representation and related case strategy. Arbitrators
need more clear guidance and support in making rulings on ethical issues. And if, as is argued
in Chapter 6, national bar associations are to be persuaded to relinquish at least partial con-
trol over aspects of transnational practice, they need assurance that there is a reliable regime
in place to protect client and societal interests implicated in attorney conduct.
As more and more new parties and counsel enter the international arbitration community, 3.101
the centre is moving out. As the number of disputes submitted to arbitration have increased
significantly, the greatest growth in cases is occurring in regional arbitration centres and
involve smaller amounts in dispute. These claims will inevitably introduce to the interna-
tional arbitration system new parties and counsel, who inevitably expand and amplify the
cultural differences that already exist.
Conflicts among national ethical rules have not only heightened interest in the develop- 3.102
ment of specialized ethical rules for international arbitration. They have also generated some
scepticism as to whether such specialized rules are possible. Given the often fundamental
222 See Vagts, ‘The International Legal Profession’ 255 (observing that ‘[i]t appears that, while arbitrators
have no authority to suspend or disbar attorneys, they could disqualify attorneys from appearing before them
and could impose sanctions for attorney misbehavior when it came to assessing the costs of the arbitration’).
223 See David Elward, ‘ICC beats its chest over “guerrilla” tactics in arbitration’, Global Arbitration Review, 13
August 2010 (quoting Philippe Cavalieros, head of international arbitration at French car company Renault as
saying, ‘The ICC system is quite strong, but there should be strengthened systems to apportion sanctions and
costs where such tactics arise’.).
224
For an extended discussion of the structural reasons why ethical conflicts in international arbitration are
receiving greater attention, see Rogers, ‘Fit and Function in Legal Ethics’.
137
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differences in national ethical regimes, some are convinced that ‘there is no workable solution
to the problem’ and it is not possible at an international level to ‘go beyond general statements
of principle and still obtain consensus’.225 Under this view, any ‘global code would overlap
existing standards and be inconsistent with them’ and therefore could not be enforceable.226
3.103 An increasing and increasingly vocal number of leading arbitrators and practitioners have
described the current absence of ethical regulation as a potential crisis that can threaten the
legitimacy of international arbitration.227 As some commentators have noted: ‘So far, inter-
national arbitration has largely escaped major ethical controversy, but this cannot be taken
for granted in the future.’228 Effective ethical norms backed up by meaningful enforcement
is the best way to prevent such an ethical controversy from leading to external efforts at the
national level to control counsel conduct in international arbitration. To maintain its inde-
pendence, legitimacy, and effectiveness, international arbitration needs to develop meaning-
ful self-regulation of attorney ethics. The new IBA Guidelines, and related developments in
arbitral institutions’ rules, provide an important starting point on the road to self-regulation
of counsel in international arbitration. The full implications of this development will be
taken up later in Chapter 6.
225 Comments of Audley Sheppard at Session on Ethics in Arbitration at the IBA Annual Meeting,
13 October 2008, reported in Janet Walker, ‘Ethics in arbitration for counsel and arbitrators’, in International
Bar Association, Legal Practice Division, Newsletter Arbitration, 11.
226 Comments of Audley Sheppard at Session on Ethics in Arbitration at the IBA Annual Meeting, 11.
227 Brower and Schill, ‘Regulating Counsel Conduct before International Arbitral Tribunals’ 491–2 (‘At
issue may ultimately be the legitimacy of the international arbitral system as a whole, in particular inasmuch as
. . . [uniform legal ethics for counsel] operate[] not only retrospectively . . . but also prospectively as a mechanism
of global governance.’); Address by Doak Bishop at the ICCA Congress on 26 May 2010.
228 Doak Bishop and Margrete Stevens, ‘The Compelling Need for a Code of Ethics in International
Arbitration: Transparency, Integrity and Legitimacy’, in Albert Jan van den Berg (ed.), Arbitration Advocacy in
Changing Times, ICCA Congress Series 15 (Kluwer Law International, 2011) 391–407.
138
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ETHICS IN INTERNATIONAL ARBITRATION

00_9780195337693_FM.indd i 9/9/2014 5:10:05 PM

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I MAPPING THE TERRAIN

1. From an Invisible College to an Ethical No-Man’s Land 17

2. Arbitrators, Barbers, and Taxidermists 57

3. Attorneys, Barbarians, and Guerrillas 99

4. Experts, Partisans, and Hired Guns 139

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5. Gamblers, Loan Sharks, and Third-Party Funders 177

II STAKING OUT THEORETICAL BOUNDARIES

6. Chanticleer, the Fox, and Self-Regulation 221

7. Ariadne’s Thread and the Functional Thesis 274

8. Herodotian Myths and the Impartiality of Arbitrators 311

9. Duck-Rabbits, a Panel of Monkeys, and the Status of

10. Castles in the Air and the Future of Ethics in

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MAPPING THE TERRAIN

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[T]he professional community of international lawyers . . .

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02_9780195337693_ch01.indd 18 9/6/2014 9:23:23 AM

02_9780195337693_ch01.indd 19 9/6/2014 9:23:23 AM

A. The early modern international arbitration system

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Professional Competition’, 21 Law & Soc. Inquiry 285, 295 (1996).

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Arbitration: Collected Empirical Research (Kluwer Law International, 2005) 248 n. 66.

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Procedures (2000) 264.

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B. Modern international arbitration

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1. Growth and diversiﬁcation of international arbitration

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16-4 Mealey’s Int’l Arb. Rep. 11 (2001).

02_9780195337693_ch01.indd 26 9/6/2014 9:23:23 AM

kluwerarbitrationblog.com/blog/2009/04/02/are-unilateral-appointments-defensible/> (arguing for elimina-

02_9780195337693_ch01.indd 27 9/6/2014 9:23:23 AM

and Credit Union Satisfaction Survey, <http://www.prweb.com/releases/Prime-Performance/Bank-and-

02_9780195337693_ch01.indd 28 9/6/2014 9:23:23 AM

2. Formalization and increased transparency

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ibility remains an important feature of international arbitration.

02_9780195337693_ch01.indd 30 9/6/2014 9:23:24 AM

3. Economic competition in international arbitration

x?practice-area-id=488practice-area=International+Arbitration+-+Commercial> (rankings are based on a rigor-

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C. Globalization of the legal profession

Journal and OGEMID. See <http://www.transnational-dispute-management.com/ogemidawards/>.

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1. The rise of the mega law ﬁrm

Judicial Code’, 34 Hofstra L. Rev. 1337, 1353 (2006).

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2. The mega-ﬁrm goes global

Australian Viewpoint’, 34 Vand. J. Transnat’l L. 1173 (2001).

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D. Regulation of transnational law practice

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1. National regulation of transnational legal practice

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