REUTERS | Denis Balibouse

Creation of a Global Arbitration Ethics Council: the Swiss Arbitration Association declares that time has not yet come

In September 2014, the President of the Swiss Arbitration Association (ASA) called for the creation of a Global Arbitration Ethics Council, a truly transnational body, to whom matters of alleged unethical conduct would be referred.

The idea of creating such a council stemmed from the publication in 2014 of the IBA Guidelines on Party Representation in International Arbitration (IBA Guidelines) and the concomitant entry into force of the Arbitration Rules of the London Court of International Arbitration (LCIA Rules), including its annex titled “Guidelines for the Parties’ Legal Representatives”.

Reflecting upon those rules, several members of the ASA board came to the conclusion that neither arbitral tribunals nor local bar council would constitute proper fora to rule on allegations of unethical counsel conduct in international arbitration.

It was in light of those findings that the ASA proposed to create a transnational body dedicated to deciding exclusively on matters of alleged unethical conduct. The main features of the Global Arbitration Ethics Council were as follows:

  • The council would be composed of delegates from the major arbitration associations and institutions participating in the project.
  • From this pool of arbitration practitioners, a panel of decision makers would be formed for each matter referred to the council.
  • The proceedings before the council would be completely separate from the underlying arbitration.
  • The arbitration associations and institutions that would adhere to the project would elaborate a joint set of core ethical principles that would apply irrespective of the legal and geographical background of counsel or parties. However, each panel would have discretion to apply other rules or guidelines deemed relevant for the case.
  • The sanctions that could be imposed by the council would range from a simple admonishment to the suspension of membership rights or even exclusion from the association of which the offending counsel is a member.
  • Finally, the council’s disciplinary authority would be based on counsel membership in international arbitration associations participating in the project and, in institutional arbitration, with the agreement of counsel taking part in proceedings administered by participating institutions.

Reaction to that proposal ranged from frankly hostile to very enthusiastic, with some voicing concern regarding the need and utility of additional regulation and soft law. In November 2015, an informal working group chaired by the ASA (in which several arbitration associations and institutions participated, including the Chartered Institute of Arbitrators (CIArb), International Bar Association (IBA), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), Swedish Arbitration Association (SAA), Stockholm Chamber of Commerce (SCC), and Vienna International Arbitration Centre (VIAC)), which met in Geneva. The discussion focused on whether there was a need for a separate international structure distinct from bar councils, institutions and tribunals. Although no agreement was reached on the proposal for the creation of a Global Arbitration Ethics Council, participants agreed to continue discussions.

After reviewing empirical data collected from bar councils all over Europe and the US, the group held a second meeting in Geneva. At the end of that meeting, the working group found that:

  • There are practically no complaints lodged before national supervisory authorities in relation to international arbitration.
  • The kind of problems which are sometimes labelled as problems of “counsel ethics” most often relate to the orderly conduct and integrity of arbitration proceedings, admissibility and weighing of evidence. Arbitrators already have broad powers to address these problems.
  • One possible way forward for purely ethical issues would be for arbitral associations to discuss internally whether they would wish to adopt internal disciplinary procedures similar to those of the CIArb.

In light of the above, the working group reached the conclusion that the “time has not yet come” to form an international body that could punish lawyers for violating ethical standards, as more experiments and research are needed. The ASA declared that it might revisit the idea of an ethics council in the future, depending on the outcome and practical implementation of the discussions on internal disciplinary procedures within arbitration associations.

Lord Goldsmith was probably right when he affirmed in his Keynote Speech at the ICC UK Annual Arbitrators Forum in 2013, “ethics in international arbitration has generated much debate but relatively few answers”.

Schellenberg Wittmer Sebastiano Nessi

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