Ethics in International Arbitration: Introduction and Chapter One

Abstract

This Introduction and Chapter One are from a forthcoming book, Ethics in International Arbitration (forthcoming, Oxford University Press 2012). The book explores the professional obligations of participants in international arbitration -- the arbitrators, the lawyers, the experts, and the arbitral institutions.

Despite international arbitration’s impressive growth and obvious maturation in recent years, many question remain unanswered about the ethical duties and professional conduct of those who participate in the arbitral process. What is the source of their duties? Are specialized international ethical rules feasible and desirable? If so, who should promulgate them and how should they go about it? How do ethical obligations applicable in international arbitration relate to the ethical obligations that national legal systems impose? Who should enforce such rules? What penalties or sanctions should apply to ethical violations? And, more generally, why does this all matter?

The principal thesis of this book is that the international arbitration community should assume primary responsibility for the effective ethical regulation of its participants. This is a call to ethical self-regulation -- ethical regulation managed principally within international arbitration processes and institutions. In the remaining chapters of the book, I map the current ethical problems that exist and are increasingly disrupting international arbitral proceedings, propose conceptual and theoretical frameworks for addressing these problems, and outline concrete reforms for implementing those proposals.

In the attached Introduction, I provide a general overview of the book, its thesis, and overarching themes. Chapter One sets the stage for the following chapters. It documents how international arbitration practictioners have evolved from being members of Oscar Schactor's Invisible College into inhabitatnts of an ethical no-man's land. In this regard, it locates the trends in international arbitration that necessiate development of more effective ethical regulation within larger trends that characterize the globalization of the legal profession more generally.

Keywords: globalization, legal profession, ethics, international arbitration, arbitrator

JEL Classification: F23, K23, K33, K41