This course will consider ethics principles governing the conduct of counsel, arbitrators and expert witnesses in international commercial and investment arbitrations. Topics will include recent developments in the IBA Guidelines on Conflicts of Interest in International Arbitration and the IBA Guidelines on Party Representation in International Arbitration, other soft law instruments such as the ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes, national law regulation of the conduct of arbitrators and counsel in international arbitrations, ethics requirements included in international arbitration rules and ethics requirements for witnesses in international arbitrations, as well as recent ethics-related jurisprudence from ICSID, arbitral institutions and various national courts.
This course has the following goals:
- To enable the student to identify fundamental differences between the ethics obligations of principal participants (arbitrators, counsel and witnesses, particularly expert witnesses) in international arbitrations (involving participants from a multiplicity of States and legal systems and a forum intended to be perceived as neutral and thus largely outside the influence of the particular national legal systems of the parties) and the ethics obligations of principal participants in national judicial systems.
- To identify the complex regulatory, choice of law and legal culture problems involved in identifying the sources and content of ethics obligations of participants in international arbitrations in light of the diversity of legal and national cultures involved and to compare and contrast with the sources and content of ethics obligations of participants appearing in national courts.
- To identify possible remedies for breaches by participants in international arbitrations of their ethics obligations (if any) and to compare and contrast with remedies in national courts.
My objective will be to enable students, by the end of the sessions, to be able to:
- describe the subject areas covered (or not covered) by ethics responsibilities for principal participants (arbitrators, counsel and witnesses) in international arbitration
- describe how those areas may differ in sources and content, when compared with national court systems,
- recognize and explain reasons why the ethics responsibilities of participants in international arbitration differ from the ethics responsibilities of similar participants in national court systems
- describe important uncertainties with respect to ethics obligations of those participants, and
- apply that learning to advise clients and counterparties on complying with those responsibilities or, when the nature of those responsibilities are uncertain, how to manage the arbitral process in light of those uncertainties.