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THE PENNSYLVANIA STATE UNIVERSITY THE DICKINSON SCHOOL OF LAW Legal Studies Research Paper No.

18-2010

TITLE

THE ETHICS

OF

ADVOCACY

IN

INTERNATIONAL ARBITRATION

AUTHOR

Catherine A. Rogers

This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection: http:ssrn.com/abstract= 1559012

law.psu.edu

Electronic copy available at: http://ssrn.com/abstract=1559012

THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION 1

THE ETHICS OF ADVOCACY IN INTERNATIONAL ARBITRATION


Catherine A. Rogers* Traditionally, attorneys are subject to ethical rules that are created and enforced by national and sub-national regulatory authorities. As dispute resolution has gone global, 1 however, attorney ethics increasingly defy this traditional regulatory model. 2 In many systems, there are doubts about whether the ethical regulations of an attorneys home state extend extraterritorially, for example, into international arbitrations occurring elsewhere.3 Even when home state ethical rules are applied extraterritorially, however, they most often conflict with the rules that govern opposing counsel from a different jurisdiction. At best, therefore, attorneys in an international arbitration are each abiding by different and often-conflicting national ethical rules. At worst, they are operating in an ethical no-mans land. When the topic of ethics in international arbitration is discussed, the assumption is that the only real concern is the content of the substantive rules that guide and regulate attorney conduct. However, just as the substantive ethical rules in any national legal system exist within the framework of a larger regulatory regime, so too must any ethical rules developed for the international arbitration system. This Chapter reviews some of the well-known conflicts and
Professor of Law, Pennsylvania State University, Dickinson School of Law, University Park, Pennsylvania & Universit Commerciale Luigi Bocconi, Milan, Italy. See Thomas E. Carbonneau, The Remaking of Arbitration: Design and Destiny 27, in LEX MERCATORIA AND ARBITRATION (Thomas E. Carbonneau, ed., 1998). See Ronald A. Brand, Professional Responsibility in a Transnational Transactions Practice, 17 J.L. & COMM. 301, 335 (1998) (noting that a bar opinion permits parties to international arbitration to be represented by non-state-licensed attorneys); Toby S. Myerson, The Japanese System, in RIGHTS LIABILITY AND ETHICS IN INTERNATIONAL LEGAL PRACTICE 69 (Mary C. Daly & Roger J. Goebel, eds., 1994) (noting that even traditionally restrictive Japanese law changed recently to permit non-Japanese-licensed attorneys to engage in international arbitrations in Japan). See Detlev Vagts, International Legal Ethics and Professional Responsibility, 92 AM. SOC. INTL L. PROC. 378, 378 (1998) (noting that it is unclear whether the Model Rules apply in arbitration proceedings); Peter C. Thomas, Disqualifying Lawyers in Arbitrations: Do the Arbitrators Play Any Proper Role?, 1 AM. REV. INTL 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.).
3 2 1 *

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ethical ambiguities that arise in international arbitration, and examines some of the problems in developing a uniform set of rules that are increasingly regarded as a necessary development. Beyond the substantive rules, however, this Chapter also takes up the related problems inherent in implementing and enforcing those rules. I. The Nature and Substance of Ethical Conflicts

Michael Reisman and Detlev Vagts long ago recognized that the conflicts among national ethical rules require development of international ethical rules to govern attorney conduct in the context of international tribunals, specifically international arbitration. 4 Since then, a number of other important scholars have added their voices to a growing chorus calling for new ethical rules for international arbitration. 5 The topic is increasingly popular at international arbitration conferences, and as a corollary to various efforts to address the ethics of lawyers engaged in transnational legal practice. Literally dozens of new international codes of ethics have been drafted. For a long time, the only international ethical rules were found in the 1956 International Bar Association (IBA) International Code of Legal Ethics. Although called a code and referred to as rules, that effort is most accurately characterized as a set of professional notions rather than rules that provide any meaningful guidance.6 More recent efforts include the IBA Core Values
See W. MICHAEL REISMAN, NULLITY AND REVISION: THE REVIEW AND ENFORCEMENT OF INTERNATIONAL JUDGMENTS AND AWARDS 116-17 (1971); Detlev F. Vagts, The International Legal Profession: A Need for More Governance?, 90 AM. J. INTL L. 250, 250 (1996) (describing problems in Iran Claims Tribunal caused by lack of ethical consensus among attorneys). See Charles N. Brower & Stephan W. Schill, Regulating Counsel Conduct Before International Arbitral Tribunals in MAKING TRANSNATIONAL LAW WORK IN THE GLOBAL ECONOMY: ESSAYS IN HONOUR OF DETLEV VAGTS (forthcoming 2010); Pierre Heitzmann, Confidentiality and Privileges in Cross-Border Legal Practice: The Need for a Global Standard?, 26 ASA BULLETIN 205 (2008); Carrie Menkel-Meadow, Are Cross-Cultural Ethics Standards Possible or Desirable in International Arbitration?, Georgetown Public Law Research Paper No. 1130922; University of California Irvine School of Law Research Paper No. 2008-2, at 19, http://ssrn.com/abstract=1130922; Jan Paulsson, Standards of Conduct for Counsel in International Arbitration, 3 AM. REV. INTL ARB. 214 (1992); 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). Mary C. Daly, The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers, 32 VAND. J. TRANSNATL L. 1117, 1158 (1999).
6 5 4

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THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION 3

Resolution, which began in 1998, and the IBA General Principles of the Legal Profession of 2006, for which new commentary is currently being drafted. In addition, 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 2002.7 In addition to these efforts, some international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court in The Hague, have developed codes of ethics for defense counsel. There has also been a virtual explosion of auxiliary regulation of attorneys through national legislation and international agreements aimed at controlling money laundering, corruption, terrorism, tax evasion and trade in legal services. 8 These various sources demonstrate increased recognition of the need to regulate attorneys, but they only address a limited range of ethical issues, and even then only partially and with limited success. The seminal and most familiar example used to illustrate the need for international ethical rules is the clash between national ethical rules relating to pre-testimonial contact with witnesses. As one scholar recounts, lawyers from different jurisdictions have starkly different opinions about pre-testimonial communication with witnesses: 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.9 There are also significant national divergences about the nature and scope of disclosures that can or should be made. In many jurisdictions, communications with in-house counsel are confidential, while in others they are not.10 In
For a detailed survey of these and other 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, 1140-46 (2007). For an overview of these developments, see Laurel S. Terry, et al., Transnational Legal Practice, 42 INTL LAWYER 833 (2008). Karen L.K. Miller, Zip to Nil?: A Comparison of American and English Lawyers' Standards of Professional Conduct, CA32 ALI-ABA 199, 204 (1995). For additional discussion of these issues, see Mary C. Daly, The Cultural, Ethical and Legal Challenges in Lawyering for a Global Organization, 46 EMORY L.J. 1057 (1997). Pierre Heitzmann, Confidentiality and Privileges in Cross-Border Legal Practice: The Need for a Global Standard?, 26 ASA BULLETIN 205 (2008); Bernhard F. Meyer-Hauser & Philipp Siber, Attorney Secrecy v. Attorney-Client Privilege in International Commercial
10 9 8 7

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jurisdictions like the United States, where there is a tradition of opposing parties exchanging of documents before trial, attorneys have an ethical obligation to search for and disclose non-privileged documents in response to authorized requests. In other jurisdictions, where there is no tradition of document exchange, and hence no related ethical obligations, many counsel regard it as a betrayal of their obligation of loyalty to disclose documents that are damaging to their client. Meanwhile, the French doctrine of sous la foi du Palais may require that an attorney maintain as confidential as against his own client a communication conveyed by opposing counsel, even if such communication contains a proposed settlement that U.S. ethical rules mandate that the attorney disclose to the client.11 In a newer development, the UK Proceeds of Crime Act of 2002 mandates that attorneys disclose certain information to law enforcement agencies (while withholding the disclosure from the client), even if such disclosure is forbidden under the ethical rules of many other jurisdictions. 12 There is also wide divergence regarding the nature and degree of permissible ex parte communication between judges or arbitrators, on the one hand, and parties or their counsel on the other hand. In China, for example, it is not only permissible but also probable that an arbitrator (or judge) will act as a mediator in the same case in which she presides as ultimate decisionmaker.13 The substance of these ex parte conversations may be (but is not necessarily) communicated to
Arbitration, 73 ARB. 148 (2007); Richard M. Mosk & Tom Ginsburg, Evidentiary Privileges in International Arbitration, 50 INTL COMP. L. Q. 345 (2001); Taru Spronken & Jan Fermon, Protection of Attorney-Client Privilege in Europe, 27 PENN ST. INTL L. REV. 439 (2008). Laurel S. Terry, An Introduction to the European Communitys Legal Ethics Part 1: An Analysis of the CCBE Code of Conduct, 7 GEO. J.L. ETHICS 1, 36-7 (1993). See Galvin F. Leckie & Anthony E. Woods, Developments in Ethics, SJ027 ALIABA5 221, 223 (2003) (describing the Proceeds of Crime Act as a troubling development that erodes the relationship between lawyer and client and the duty of confidentiality); Hans-Jrgen Hellwig, At the Intersection of Legal Ethics and Globalization: International Conflicts of Law in Lawyer Regulation, 27 PENN STATE INTL L. REV. 395, 399 (2008) (describing a German attorney imprisoned in London for refusing to disclose information deemed confidential under German law). 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, e.g., China International Economic and Trade Arbitration Committee Arbitration Rules, arts. 46, 47 (1994); Japan Commercial Arbitration Association Commercial Arbitration Rules, Rule 39 (1992); Hong Kong Arbitration Ordinance 2(A), 2(B), ch. 341, Laws of Hong Kong (H.K.), cited in Philip J. McConnaughay, Rethinking the Role of Law and Contracts in East-West Commercial Relationships, 41 VA. J. INTL L. 427 n.102 (2001).
13 12 11

THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION 5

other parties. Similarly, many Continental systems permit some ex parte communications and do not presuppose that all parties will always be in the courtroom during fact-finding proceedings. Relatedly, many national ethical rules expressly permit some contacts.14 In the United States, by contrast, there are absolute restrictions against ex parte communications, except in certain rare procedural contexts. In an interesting twist, which has historically caused some complications in international arbitrations, 15 the stringent U.S. rules prohibiting ex parte communications are not followed in U.S. domestic arbitration, where partyappointed arbitrators have routinely communicated with their appointing party, even about crucial issues involving strategy. Although not an exhaustive survey of all the ethical conflicts that arise in international arbitration, it is a daunting list nonetheless. Lawyers engaged in transnational legal practice have little or no guidance about how these rules fit together, and even less guidance about how to manage such conflicts when appearing before international arbitration tribunals. II. The Consequences of Ethical Conflict

Back when international arbitration was predominantly a compromiseoriented system governed by informal procedures, the absence of clear ethical guidance was not a serious concern.16 Today, these conflicts are quite pronounced and they create two distinct but related problems. The first problem is sometimes referred to by ethicists as the double deontology problem. An attorney may be licensed in more than one jurisdiction or otherwise be subject to the regulatory power of more than one jurisdiction, for example the rules of both the jurisdiction where an attorney is licensed and the jurisdiction where that attorney has an office or is appearing before a tribunal. In these instances, the different rules may impose obligations that are impossible to comply with
See, e.g., Code of ConductGermany 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, supra note 11, at 36 n.159. 15 Ambassador Malcolm Wilkey, The Practicalities of Cross-Cultural Arbitration, in CONFLICTING LEGAL CULTURES IN COMMERCIAL ARBITRATION: OLD ISSUES AND NEW TRENDS 86 (Stefan N. Frommel & Barry A.K. Rider, eds., 1999); Nicholas C. Ulmer, Ethics and Effectiveness: Doing Well by Doing Good, in THE COMMERCIAL WAY TO JUSTICE: THE 1996 INTERNATIONAL CONFERENCE OF THE CHARTERED INSTITUTE OF ARBITRATORS 167, 171 & n.8 (1996) (noting that it is not [an] uncommon practice for one arbitrator to be communicating with the appointing party). 16 For an extended discussion of the structural reasons why ethical conflicts in international arbitration are receiving greater attention, see Catherine A. Rogers, Fit and Function in Legal Ethics: Developing a Code of Attorney Conduct for International Arbitration, 23 MICH. INTL L.J. 341 (2002).
14

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simultaneously and the attorney is faced with the prospect of professional discipline regardless of what action he takes. The second problem is that, when attorneys who are bound by different ethical rules participate in a single international proceeding, the proceedings may be structurally unfair. As Detlev Vagts cogently explains: [I]t would not be workable to allow the counsel for opposing sides in a civil case to enter the courtroom subject to different rules. . . . It would not do to prohibit one lawyer from a civil law jurisdiction 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. 17 There are numerous other potential conflicts, described above, that may produce inequalities and affect the fairness of the proceedings. Both the double deontology problem and what might be referred to the inequality-of-arms problem have asserted themselves with increasing frequency in international arbitration. As a result, despite the fact that they have no formally delegated powers to enforce ethical rules,18 arbitral tribunals are increasingly being pressed into service. They resolve such conflicts on an ad hoc basis, for example when ordering production of documents, when making evidentiary rulings, when ruling on claims of alleged conflicts of interest, asserted privileges 19 and requests for disqualification, 20 when drawing (or refusing to draw) adverse inferences based on alleged misconduct, 21 and when awarding costs and fees.
Detlev Vagts, Professional Responsibility in Transborder Practice: Conflict and Resolution, 13 GEO. J. LEGAL ETHICS 677, 690 (2000). But see Paulsson, supra note 5, at 215 (stating that [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). Klaus-Peter Berger, Evidentiary Privileges: Best Practice Standards Versus/and Arbitral Discretion, 22 ARB. INT. 501 (2006). Historically, arbitrators were regarded as not having the jurisdiction or authority to disqualify counsel. See, e.g., Munich Re America Inc. v. Ace Property & Casualty Co., 500 F.Supp.2d 272, 275 (S.D.N.Y. 2007) (holding that disqualification of an attorney for an alleged conflict of interest, is a substantive matter for the courts and not arbitrators, and reasoning that [a]ttorney discipline has historically been a matter for judges and not arbitrators because it requires an application of substantive state law regarding the legal profession); see also Simply Fit of N.Am. v. Poyner et al., 579 F.Supp.2d 371 (E.D.N.Y. 2008). These are domestic cases, but reportedly have been relied on by some international commercial arbitration tribunals. More recently, a distinguished tribunal in an investment arbitration concluded that it did possess such power. See Hrvatska Elektroprivreda, d.d. v. The Republic of Slovenia, ICSID Case No.
20 19 18 17

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At a substantive level, ad hoc innovations have also prompted development of some specialized ethical rules for international arbitration. For example, as noted above, there are significant conflicts between national traditions and ethical rules regarding the permissibility of pre-testimonial communication with witnesses.22 These conflicts have over time been largely displaced in international arbitration by a generally accepted customary rule of practice permitting such communication. This customary practice has, in turn, been translated into an explicit rule in the IBA Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules),23 and Swiss and French authorities have expressly ratified it as an exception to otherwise applicable national ethical rules.24 Although these innovations provide important gap-fillers,
ARB/05/24, Tribunals Ruling regarding the participation of David Mildon QC in further stages of the proceedings of 6 May 2008, available at http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&doc Id=DC950_En&caseId=C69. Arguably, while there may be compelling reasons to require that ethical issues in domestic cases be brought to domestic regulatory authorities, the arguments against arbitrator authority are much less compelling in the international arbitration context, particularly if the rules being applied are international and not domestic ethical rules. For an excellent discussion of disqualification in the investment arbitration context, see Brower & Schill, supra note 5. 21 Vera van Houtte, Stephan Wilske & Michael Young, Whats New in European Arbitration?, 62-JAN DISP. RESOL. J. 12 (2008) (describing findings by Swiss federal tribunal that drawing negative inferences for a partys refusal to produce documents was an element of the arbitrators assessment of the evidence). Mirjan R. Damaska, Presentation of Evidence and Factfinding Precision, 123 U. PENN. L. REV. 1083, 1088-9 (1975) (explaining the classical view that [c]oaching 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); 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.). Article 4(3) of the IBA Rules provide 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. Although framed as a rule of evidence, use of the word improper reveals its real purpose in resolving the ethical conflict. In Switzerland, while pre-testimonial contact with witnesses is generally prohibited, Article 7 of the Code Suisse de Deontologie provides with respect to Contact avec les tmoins (contact with witnesses): Lavocat sabstient dinfluencer les tmoins et experts. Demeurent reserve les rgles particulires des procdures darbitrage et procdures devant les Tribunaux supranationaux (prohibiting attorneys from contacting witnesses, but suspending such prohibition in proceedings before arbitral or supranational tribunals). See also Bulletin du Bttonnier n. 9 du 4 Mars 2008 (resolution of the Conseil de lOrdre de Paris permitting members
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there is a distinct need for a more systematic resolution to the conflicts between national ethical rules. While providing a useful stop-gap, in some instances these ad hoc innovations create new, more subtle problems. For example, in systems like the United States, where pre-testimonial communication with witnesses is broadly permitted, there are more specific rules setting boundaries for such communications. Other systems that traditionally prohibit such communication have resolved some issues by creating specific exceptions to those prohibitions for international arbitration, but those exceptions do not include any guidance about the extent and limits of their application.25 As a result, conflict remains regarding the manner and extent to which pre-testimonial communication with witnesses is permissible, even after new rules were developed in a direct attempt to resolve the primary underlying conflict.26 Moreover, as described below in the context of another international tribunal, if new rules are promulgated, their application is limited unless they officially displace contrary national rules, for example through a choice-of-law provision. III. Ethical Rules as More than Text

The need for a systematic response to conflicting national ethical rules has been drawing more attention, particularly in the form of proposals to develop an international code of ethics.27 As described above, there are a number of generally applicable international codes of ethics, and new efforts to draft a code

of the Paris Bar to prepare witnesses in international arbitration proceedings located in France or abroad in accordance with applicable rules). Notably, while U.S. 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, Interviews with Former Employees: Strategies and Pitfalls, 16 No. Prac. Litigator 47 (2005); DC Bar Opinion 287: Ex Parte Contact with Former Employees of Party-Opponents,http://www.google.it/search?sourceid=navclient&aq=0h&oq=dc&ie=UTF8&rlz=1T4SKPB_enIT326IT327&q=dc+bar+opinion+287; see also James Castello, Q&A: Is Arbitration an Ethical Wasteland?, GLOBAL ARB. REV. (17 June 2009). Lucy Reed & Jonathan Sutcliffe, The Americanization of International Arbitration?, 4 MEALEYS INTL ARB. RPT. 37, 42 (2001) (suggesting that while some consensus has emerged about the possibility of preliminary communication with witnesses, there remains conflict as to the extent permitted). See, e.g., Malini Majumdar, Ethics in the International Arena: The Need for Clarification, 8 GEO. J. LEGAL ETHICS 439, 451-52 (1995); John Toulmin, A Worldwide Common Code of Professional Ethics?, 15 FORDHAM INTL L.J. 673 (1991-1992).
27 26 25

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specifically for international arbitration.28 Developing a workable code of ethics is not as simple as drafting good substantive rules. Instead, the rules must be distilled from, and integrated into, the legal culture of international arbitration. In national legal systems, ethical rules do not reflect simply an abstract decision made by a bar association about where to draw an ethical line. They instead shape and are shaped by shared understandings of what is proper based on history, culture, education and training of a national legal profession. 29 Ethical rules for international arbitration must also be a meaningful expression of the shared ethical values and assumptions that inform attorneys role in an international arbitration or it will be difficult for attorneys to comfortably step away from their national traditions and ethical precepts. In this respect, efforts to draft ethical rules for international arbitration should look to the experience of the International Criminal Tribunal for the former Yugoslavia (ICTY). Although a criminal tribunal, it has many features that are similar to international arbitration, particularly with respect to accommodating a multitude of national legal cultures. There are twenty-five judges at the ICTY, coming from twenty-three different countries and [t]he defense bar of the ICTY has 257 members, drawn from multiple legal traditions, with roughly half of the defense bar from the former Yugoslavia. . . . 30 As part of their participation in ICTY proceedings, [c]ivil and common law lawyers are reoriented to the new hybrid trial model [of the ICTY] and their role within that model.31 All attorneys at the ICTY undergo this re-orientation, which has been particularly important with respect to Soviet-era trained lawyers, who viewed the
For example, the IBA has announced creation of a Task Force specifically to address the issue and work on a possible code of ethics. See http://www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Overview.aspx. Some doubt the viability of actually developing such a multi-national code since ethical rules are so closely linked to national procedures and national legal cultures. See Menkel Meadow, supra note 5; University of California Irvine School of Law Research Paper No. 2008-2, at 19, http://ssrn.com/abstract=1130922 (concluding that cultural differences make it impossible to develop universal ethical standards for international arbitration); Kristen Weisenberger, Peace Is Not The Absence Of Conflict: A Response To Professor Rogerss Article Fit and Function in Legal Ethics, 25 WISC. INTL L.J. 89 (2007) (arguing that extant rules of conduct are adequate for the purpose of regulating international arbitrations, and a conflict-of-laws approach is the best option). Judith A. McMorrow, Creating Norms of Attorney Conduct in International Tribunals: A Case Study of the ICTY, 30 B.C. INTL & COMP. L. REV. 139, 146 (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).
30 31 29 28

Id. at 148. Id.

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role of the criminal defense lawyer as an enemy of the state. Once the role of attorneys before the ICTY was established, new ethical norms appropriate to that new role had to be and were developed and eventually codified. 32 All this occurred despite the fact that [t]here was no shared history, background, or culture to help determine the best course of action.33 This example is, of course, a compelling response to those critics who regard with skepticism the entire project of drafting a code of ethics for international arbitration. While harmonized rules are much needed, a single code that applies generally to international arbitration may not be right. While arbitration is often discussed as a monolithic system, in fact there is a remarkable degree of variation among different institutions and arbitral rules, and even among arbitrations administered under a single set of rules. For ethical rules to be workable across the range of international arbitral regimes, they must have a degree of flexibility to facilitate the diversity and flexibility that exists in arbitration proceedings. An example will illustrate the inherent limitations of a single, inflexible code. A rule that generally permits pre-trial witness communication, even though clearly the working consensus, might not be suitable in an arbitration in which the parties have adopted procedures based on a so-called inquisitorial model, under which the arbitral tribunal controls the presentation of evidence and conducts all of the questioning of witnesses.34 Party communication with witnesses in this context would interfere with the arbitrators role, and a general, inflexible ethical rule allowing it would be awkward, if not counterproductive. IV. Cooperative Integration of the New Rules

The challenges involved in developing substantive ethical rules reveal other related questions. Who should promulgate such codes or rules? How will new codes or rules inter-relate with otherwise applicable national ethical rules? How would such ethical rules be enforced? What role would national bar associations or regulatory authorities have? While a detailed examination of each

32

See id. at 966-68 (outlining the development of the ICTY Code of Professional Id. at 148.

Conduct).
33 34

See Catherine A. Rogers, Context and Institutional Structure in Attorney Discipline: Developing an Enforcement Regime for Ethics in International Arbitration, 39 STAN. INTL L. REV. 1, 28 (2002).

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of these issues is beyond the scope of this Chapter, it is useful to sketch out the broad outlines of a proposal. 35 First, the need to avoid a one-size-fits-all approach relates to differences among arbitral institutions and even among individual proceedings administered by the same institution. Distinctions among arbitral institutions suggest that they should be primarily responsible for developing codes or menus of ethical rules that are specially tailored to the general contours of proceedings they generally administer.36 Since parties can still modify the procedures under a given set of arbitral rules, any codes that are developed should be subject to some modification by parties and arbitrators to accommodate or address specific procedures or cultural preferences implicated in an individual arbitration. Beyond efforts from within the arbitration community, there is a need to coordinate with national regulatory authorities. Any rules developed for international arbitration must necessarily displace otherwise applicable national ethical rules, or there is a risk the new rules will only complicate the conflicts instead of resolving them. This unfortunate result can currently be observed in the ICTY, where defense counsel are permitted by the ICTYs code of ethics to engage in pre-trial communication with witnesses. Because those counsels home bar associations do not provide for specific exemptions or choice-of-law rules, however, many defense counsel remain obliged to refrain from such communication. In other words, an international rule addressing the substantive conflict is not enough to remove the underlying conflict between the rules without cooperation from national bar associations. Several bar associations have demonstrated a willingness to permit their attorneys to be subject to special rules applicable in international tribunals. In addition to the Swiss and French exceptions regarding witnesses, described above, bar associations are starting to develop choice-of-law rules that would provide more systemic exemption from national rules in favor of rules that specifically govern international arbitration. For example, U.S. Model Rule 8.5 was expressly extended to encompass transnational activities, 37 and provides that for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in
For an extended discussion of how to implement new codes of ethics that are specially tailored to specific institutional and procedural regimes, see id. Many of these proposals will be reconsidered, expanded and further developed in CATHERINE A. ROGERS, GLOBAL LEGAL ETHICS IN INTERNATIONAL ARBITRATION (forthcoming Oxford University Press, 2010).
36 37 35

See Brower & Schill, supra note 5; Rogers, supra note 34, at 26-29.

Specifically, Comment 7 provides [t]he choice of law provision [contained in Rule 8.5] applies to lawyers engaged in international practice[.] MODEL RULES OF PROFL CONDUCT R. 8.5 cmt. 7 (2002).

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which the tribunal sits [shall apply], unless the rules of the tribunal provide otherwise . . . . For a number of reasons, the details of which are beyond the scope of this Chapter, Model Rule 8.5 produces some highly problematic and ultimately unsatisfactory results when applied to international arbitration. 38 The UK Solicitors Regulation Authoritys (SRAs) Rule 15 regarding Overseas Practice extends well beyond the rather clunky approach provided in Model Rule 8.5. It includes an extensive preface that explains how its various provisions apply and careful, and individualized guidance about how rule applies to activity abroad.39 For example, U.K. confidentiality and conflict-of-interest obligations continue to apply to activities abroad, but the U.K. prohibition against contingency fees does not apply to representation in foreign jurisdictions. Perhaps even more telling than the partial successes of general choice-oflaw rules in the U.S. and UK ethical codes are the failed attempts at providing choice-of-law. 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 international code of ethics to date.40 Given this purpose, the double deontology problem is of paramount importance, but the CCBE Code does not offer any real guidance other than to suggest that attorneys from different nations inform themselves about the rules of other jurisdictions.41 Similarly, in developing a substantive code of conduct for the International Criminal Court, the International Bar Association considered specific precedents that clearly illustrated the need for tribunal ethical rules to supercede home state rules.42 In light of these precedents, it debated the issue extensively. 43 Despite these efforts, however, the delegates were unable to reach
For an extended discussion of the textual ambiguities in, and problems applying to Rule 8.5, see Catherine A. Rogers, Lawyers Without Borders, 30 U. PENN. INTL L. REV. 1035 (2009). 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).
40 41 39 38

Terry, supra note 11, at 36-37. 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. See Daniel D. Ntanda Nsereko, Ethical Obligations of Counsel in Criminal Proceedings: Representing an Unwilling Client, 12 CRIM. L. FORUM 487 (2001). Michael Walsh, The International Bar Association Proposal for a Code of Professional Conduct for Counsel Before the ICC, 1 J. INTL CRIM. JUSTICE 490, 499 (2003).
43 42

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agreement on strategies for preventing conflicts between national ethical rules and the newly proposed supranational ethical rules.44 The limited national efforts in Switzerland and France, and even the more general choice-of-law rules in the U.S. and UK Rules, seem like important developments. But a multitude of inconsistent and conflicting national choice-oflaw rules only adds a layer of complexity and confusion to the existing conflicts. The real need is for an international choice-of-law rule that designates, and coordinates priority for, international ethical rules that are specifically developed for international arbitration. 45 Alas, even if such an international choice-of-law rule seems essential, Jonathan Goldsmith, the Secretary-General of the CCBE, has expressed extreme hesitancy about the prospects for such a rule.46 It is tempting, however, to ponder whether his skepticism is based on the challenges to consensus that have encumbered efforts by the CCBE. By contrast to a top-down regulatory entity like the CCBE, the international arbitration community may be both more motivated since the potential benefits for the system are more palpable. Moreover, the international arbitration community has arguably already been more successful at influencing national bar authorities, if the Swiss and French carve-out rules are any indication. V. Conclusion There are many pragmatic reasons why a new ethics regime is needed in international arbitration. Attorneys need more guidance about what constitutes proper conduct. Parties need to 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 bar associations need assurance if they are to relinquish at least partial control over aspects of transnational practice that there is a reliable regime in place to protect client and societal interests implicated in attorney conduct.

44 45

See id.

See Catherine A. Rogers, Cross-Border Bankruptcy as a Model for Regulation of International Attorneys, in MAKING TRANSNATIONAL LAW WORK IN A GLOBAL ECONOMY: ESSAYS IN HONOUR OF DETLEV VAGTS (forthcoming 2010); Laurel S. Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as Service Providers, 2008 J. Professional Lawyer 189, 192 (2008) (proposing an international choice-oflaw provision to be implemented through the additional commitments provisions under GATS, drafted in cooperation with the IBA); Vagts, supra note 4, at 378 (arguing that rules of private international law or conflicts of law to determine which countries standards should apply).
46

See id.

THE ETHICS OF ADVOCACY 14

Perhaps even more importantly, however, developing an effective ethical regime for international arbitration implicates fundamental issues about the health and vitality of the international arbitration system itself. The professional status of international lawyers is in part what confers legitimacy, both real and perceived, on the international arbitration system. Party consent, the jurisdictional predicate of the entire international arbitration system, is orchestrated by international lawyers. International lawyers are the ones who select the rules, laws, location, and often the presiding arbitrators on behalf of the client-party. As Charles Brower and Stephan Schill explain: The need for uniform rules concerning counsel conduct before international tribunals stems not only from a need to ensure that counsel and parties operate on a level playing field. At issue may ultimately be the legitimacy of the international arbitral system as a whole, in particular inasmuch as, in the case of investment treaty arbitrations, it operates not only retrospectively as a review mechanism for the legality of State conduct under international law, but also prospectively as a mechanism of global governance.47 If at least one end of a new ethical regime for international arbitration is to reify the international arbitration system, that goal has implications about the means for developing the needed ethical regime. Systemic cooperation that involves all relevant actorsparties, counsel, arbitrators, arbitral institutions, and national and international regulatory authoritiesis necessary to not only develop the content of the new ethical rules, but to implement them and ensure their meaningful enforcement.

47

Brower & Schill, supra note 5.