Sanctions Against Counsel in International Arbitration – Possible, Desirable or Conceptual Confusion?
Contemporary Asia Arbitration Journal, Vol. 8, No. 2, pp. 141-184, November 2015
44 Pages Posted: 20 May 2017
Date Written: November 30, 2015
This paper deals with the perceived need for ethical standards as a consequence of the emergence of the guerrilla tactics phenomenon in international arbitration, and, as a counter-reaction hereto, the call for an increasing role of ethics in international arbitration. In particular, counsel is more and more becoming the focus of potential new ethical regulations or newly-discovered competences in the arbitration world, accompanied by sanctions in case of non-compliance. The consequence of counsel misconduct, namely sanctions against counsel, is the topic of this paper. The author will discuss the question of who may sanction misbehaving counsel: whether this task should be left to state authorities or bar associations, or whether it should fall into the competence of arbitration institutions, arbitral tribunals or new global arbitration entities dealing exclusively with ethics. The author concludes that a modern interpretation of the arbitral tribunal’s implied competences to preserve the integrity of arbitral proceedings covers the power to sanction counsel. The author also concludes that counsel may not simply be regarded as a non-party to arbitration. The author also discusses how to sanction misbehaving counsel and discusses admonishment of counsel, exclusion of counsel and monetary sanctions against counsel. The author is of the opinion that the toolbox of an arbitral tribunal has more contents than expected. He is optimistic that future arbitration practice will shift towards combined efforts by arbitration institutions and arbitral tribunals to control and sanction misbehaving counsel to the extent that such conduct threatens the integrity of the arbitral proceedings.
Keywords: admonishment of counsel, blacklisting of counsel, consent, counsel conduct, ethical standards, exclusion of counsel, Global Arbitration Ethics Council, guerrilla tactics, IBA Guidelines on Party Representation in International Arbitration, LCIA Arbitration Rules, LCIA General Guidelines for the Part
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