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THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION

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 attorney’s “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-man’s 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 & Università Commerciale Luigi Bocconi, Milan, Italy.
1
See Thomas E. Carbonneau, The Remaking of Arbitration: Design and Destiny 27, in
LEX MERCATORIA AND ARBITRATION (Thomas E. Carbonneau, ed., 1998).
2
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).
3
See Detlev Vagts, International Legal Ethics and Professional Responsibility, 92 AM.
SOC. INT’L 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. 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.”).

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


THE ETHICS OF ADVOCACY
2

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”
4
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. INT’L L. 250, 250 (1996) (describing
problems in Iran Claims Tribunal caused by lack of ethical consensus among attorneys).
5
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. INT’L 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).
6
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. TRANSNAT’L L. 1117, 1158 (1999).

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


THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION
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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

7
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).
8
For an overview of these developments, see Laurel S. Terry, et al., Transnational Legal
Practice, 42 INT’L LAWYER 833 (2008).
9
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).
10
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
THE ETHICS OF ADVOCACY
4

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 INT’L COMP. L. Q. 345 (2001); Taru Spronken & Jan Fermon,
Protection of Attorney-Client Privilege in Europe, 27 PENN ST. INT’L L. REV. 439 (2008).
11
Laurel S. Terry, An Introduction to the European Community’s Legal Ethics Part 1: An
Analysis of the CCBE Code of Conduct, 7 GEO. J.L. ETHICS 1, 36-7 (1993).
12
See Galvin F. Leckie & Anthony E. Woods, Developments in Ethics, SJ027 ALI-
ABA5 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-Jürgen
Hellwig, At the Intersection of Legal Ethics and Globalization: International Conflicts of Law in
Lawyer Regulation, 27 PENN STATE INT’L L. REV. 395, 399 (2008) (describing a German attorney
imprisoned in London for refusing to disclose information deemed confidential under German
law).
13
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. INT’L L. 427 n.102 (2001).
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 party-
appointed 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 compromise-
oriented 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
14
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, 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.
INT’L L.J. 341 (2002).
THE ETHICS OF ADVOCACY
6

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.

17
Detlev Vagts, Professional Responsibility in Transborder Practice: Conflict and
Resolution, 13 GEO. J. LEGAL ETHICS 677, 690 (2000).
18
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”).
19
Klaus-Peter Berger, Evidentiary Privileges: Best Practice Standards Versus/and
Arbitral Discretion, 22 ARB. INT. 501 (2006).
20
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.
THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION
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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, Tribunal’s 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, What’s New in European
Arbitration?, 62-JAN DISP. RESOL. J. 12 (2008) (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).
22
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.”).
23
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.
24
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 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
supranationaux” (prohibiting attorneys from contacting witnesses, but suspending such
prohibition in proceedings before arbitral or supranational tribunals). See also Bulletin du
Bâttonnier n. 9 du 4 Mars 2008 (resolution of the Conseil de l’Ordre de Paris permitting members
THE ETHICS OF ADVOCACY
8

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”).
25
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=UTF-
8&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).
26
Lucy Reed & Jonathan Sutcliffe, The “Americanization” of International Arbitration?,
4 MEALEY’S INT’L 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).
27
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 INT’L L.J. 673 (1991-1992).
THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION
9

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
28
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 Rogers’s Article “Fit and Function in
Legal Ethics,” 25 WISC. INT’L 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).
29
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, 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
Id. at 148.
31
Id.
THE ETHICS OF ADVOCACY
10

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 arbitrator’s 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
Conduct).
33
Id. at 148.
34
See Catherine A. Rogers, Context and Institutional Structure in Attorney Discipline:
Developing an Enforcement Regime for Ethics in International Arbitration, 39 STAN. INT’L L.
REV. 1, 28 (2002).
THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION
11

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 ICTY’s code of ethics to
engage in pre-trial communication with witnesses. Because those counsel’s 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

35
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
See Brower & Schill, supra note 5; Rogers, supra note 34, at 26-29.
37
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 PROF’L CONDUCT
R. 8.5 cmt. 7 (2002).
THE ETHICS OF ADVOCACY
12

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 Authority’s (“SRA’s”) 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-of-
law 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

38
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. INT’L L. REV. 1035
(2009).
39
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
Terry, supra note 11, at 36-37.
41
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.
42
See Daniel D. Ntanda Nsereko, Ethical Obligations of Counsel in Criminal
Proceedings: Representing an Unwilling Client, 12 CRIM. L. FORUM 487 (2001).
43
Michael Walsh, The International Bar Association Proposal for a Code of Professional
Conduct for Counsel Before the ICC, 1 J. INT’L CRIM. JUSTICE 490, 499 (2003).
THE ART OF ADVOCACY IN INTERNATIONAL ARBITRATION
13

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-of-
law 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
See id.
45
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-of-
law 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 actors—parties, counsel, arbitrators, arbitral institutions, and national and
international regulatory authorities—is 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.