| What ECI thinks of: Relevance of Counsel Ethics in International Arbitration Program |
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| ~Authored by Prantika Dutta “International arbitration dwells in an ethical no man’s land…where ethical regulations should be, there is only an abyss.” ‘Counsel Ethics’ is presently identified as a gray area of arbitration which delves into the code of conduct the counsels are required to adhere to for fair and just adjudication in arbitration proceedings. The development of international arbitration over the past century is of unique character – despite being connected to various State jurisdictions, it is autonomous in its own nature. In its developing stages, the world of international arbitration was majorly obscured due to multiple countries’ transnational complexities. However, in its history of existence, international arbitration has entered a crucial juncture where cognizance is being taken by the global nations to analyse its nature, purpose, and legitimacy thereby making the role of counsels and their ethical compass ever-prominent. Transnational dealings of affairs are a breeding ground of ensuing problems in international arbitration in the absence of backing of foolproof laws and regulations. There is a compelling need and relevance for the enactment of a fair Code of Ethics in international arbitration and its recognition by transnational institutions. In tandem with its growing popularity as a viable alternative to traditional courtroom litigation, the international arbitration community has noticed the need for certain changes in the law to make the system more just for the parties who opt for international arbitration, and in turn, be attuned to the changes in the contours of arbitration. International arbitration is less recognizable as a form of “alternative dispute resolution” than as a type of “offshore litigation” This transformation has been both celebrated and decried as the “judicialization” of arbitration. The core ethical issues raised regarding the arbitration are consent, choice, confidentiality, and conflicts of interest. Scholars believe what encompasses core ethical values in an arbitration question can be answered along the lines of maintaining truthfulness, fairness, independence, loyalty and confidentiality by the parties involved in the arbitration including the arbitrators and the counsels. However, what constitutes ‘core ethical values’ majorly depend on cultural and ethnical background along with legal backdrop. Studying counsel ethics is a complex issue due to the underplay of not only different laws but also incompatible laws at one issue. There exist vast differences between the treatment of counsel ethics across civil law and common law countries that are bound to clash in an international arbitrational setup. The system of international arbitration has come under fire for its lack of code of conduct for counsels which in turn challenges the delivery of justice to the parties involved. There are no well-structured legislations governing the ethical codes for counsels appearing before an international arbitration. It is regulated under laws such as International Chamber of Commerce (“ICC”), London Court of International Arbitration (“LCIA”), SIAC (“Singapore International Arbitration Centre”), but they are yet to deliver a concrete regulation on counsel ethics despite it being a hot potato in the field of international arbitration. The presence of clear ethical codes affirms the existence of a dependable system of arbitral enforcement that the parties from various nations can resort to in order to resolve their transnational disputes. It has to be evolved into a fully operational international adjudicatory procedure, which aims to effectively guide and monitor the conduct of the counsels who take part in this discourse. The implementation of proper ethical codes ensures that inappropriate behaviour of the counsels will be viewed as an ‘aberration’ in an otherwise healthy system rather than it being a “symptom of lurking systemic pathologies” which risks jeopardizing the credibility of an entire mechanism of transnational dispute resolution. |