In 2008, the IBA Arbitration Committee formed a Task Force on Counsel Ethics in International Arbitration ("Counsel Ethics Task Force" or "Task Force") for the purpose of investigating the different and often contrasting ethical and cultural norms, standards and disciplinary rules that may apply to counsel in international arbitrations.[1]
The Counsel Ethics Task Force’s mandate does not include arbitrator conflicts of interest, which are addressed by a separate subcommittee of the IBA Arbitration Committee. The Conflicts of Interest Subcommittee monitors developments concerning the IBA Guidelines on Conflicts of Interest in International Arbitration ('IBA Guidelines'), which were adopted by the IBA Council in May 2004. Potential conflicts arising from different norms in matters of privilege and professional secrecy also are not covered as they are addressed by the 2010 IBA Rules on the Taking of Evidence in International Arbitration.
The mandate of the Counsel Ethics Task Force focuses on the issue whether the lack of international guidelines and conflicting norms in counsel ethics undermines the fundamental protections of fairness and equality of treatment and the integrity of international arbitration proceedings. If this is so, the question then becomes what, if anything, the Counsel Ethics Task Force should propose to mitigate any such adverse impact. The Task Force held a number of meetings in 2009 and 2010 to develop initial views on the threshold question of whether ethical issues arise in such a manner or with sufficient frequency that they required to be considered further.
Having considered as a result of its initial assessment that further investigation is required, the Counsel Ethics Task Force is seeking your input to broaden its perspective. It hopes to develop more comprehensive information about the impact of ethical constraints on arbitral proceedings, including by soliciting the arbitral community to identify specific cases where ethical issues arise in international arbitration.
The Questionnaire below will help us identify:
(a) international arbitrations in which the conduct of counsel raised ethical issues;
(b) international arbitrations where tribunals have reviewed (or declined to review) these issues and the decisions or awards setting forth their views and conclusions;
(c) court decisions on counsel ethics in international arbitration;
(d) disciplinary proceedings by professional bodies on ethical issues raised in international arbitrations; and
(e) local, national, regional or international ethical codes and standards that impact practitioners in international arbitrations.
In addition, we seek your views as to which counsel ethics issues, if any, could benefit from further guidance by the IBA.
We hope that you will take time to respond to the questions below to inform the work of the Task Force.
I. General Questions (5-10 mn)
II. Current Guidance on Counsel Ethics (10-15 mn)
III. Ethical Issues at Various Stages of an International Arbitration (20-25 mn)
a. Conflicts of Interest of Counsel
b. Third-Party Funding
c. Communication with Prospective Arbitrators, the Arbitral Tribunal, Arbitration Institution, Opposing Party, Opposing Counsel and Third Parties
d. Duty of Candor to the Arbitral Tribunal
e. Information Exchange and Disclosure
f. Witnesses
g. Corruption, Money Laundering, Forgery or Illegality
IV. Form of Possible Additional Guidance and Other Questions (3 mn)
V. Opportunity to Identify Yourself (2 mn)
The questions need neither be answered exhaustively nor completed in any particular order. We have tried to raise "yes", "no" or multiple choice questions wherever possible. Please check as many of the responses that are applicable. We encourage you to supplement your responses in the block immediately after your primary response (e.g. by adding information or citations after your "yes" or "no" answers).
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[1] The Task Force is chaired by Julie Bédard and includes the following members: José María Alonso, Cyrus Benson, Judith Gill QC, Christopher Lau, Torsten Lörcher, Fernando Mantilla-Serrano, William (Rusty) Park, Osma Rajah (secretary), Kenneth Reisenfeld, Pierre Tercier, Claus von Wobeser and Alvin Yeo.
