The issue of ethics in international arbitration poses complex uncertainties, both in terms of the content of substantive ethical rules applicable to arbitrators and counsel, and enforcement. Gary Born began the session by exploring whether there is a need to subject arbitrators to professional conduct rules for counsel, given that the parties’ arbitration agreement already imposes a number of ethics-related contractual obligations on the arbitrator, such as the obligation to act independently and impartially, confidentiality obligations, etc. It was suggested that instead of applying another set of ethical rules to achieve a minimum standard of arbitrator conduct, it may be more worthwhile to focus on enforcement and sanctions, such as enhancing an arbitral institution’s authority to remove arbitrators from its panel if an arbitrator fails to conduct the arbitration in accordance with the arbitration agreement.
With respect to professional conduct rules for counsel, the difficulty lies in the fact that different jurisdictions apply different standards and rules on professional ethics. This creates uncertainty for all parties concerned in the arbitral process, given the difficult questions on choice of law governing professional conduct issues in international arbitration and choice of forum for the enforcement of such rules. As such, in the second part of the session, the SIArb Working Group, comprising Chan Leng Sun SC, Mohan Pillay, Rian Matthews and Adriana Alexis Uson-Ong, took the audience through a set of draft “Guidelines on Party-Representative Ethics” that it had prepared for consultation. The draft Guidelines seek to reflect a minimum standard of ethical conduct for party representatives in international arbitration. They are based on the overarching principle that party representatives should at all times act with honesty, integrity and professionalism, both with respect to their client and the arbitral tribunal. The Working Group’s discussion triggered a lively debate with the audience, especially on the thorny issue of sanctions which the Working Group hoped to consider further during the consultation period (which ends on 31 January 2018).
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Michelle Lee – Baker McKenzie.Wong & Leow