80% against motion that ethics in international arbitration requires no further regulation

This House believes that ethics in international arbitration requires no further regulation.

FOR THE MOTION:

David Joseph QC

  • Opens by setting the scene of a Hamlet character wandering around international arbitration
  • The guidelines would not apply to work done before arbitration which is the very work it seeks to protect
  • Inherent inadequacy of guidelines. Ultimately they fall short eg re document production - infers no obligation or effective remedy.
  • Need jurisdiction to warn & fine party representatives such as court has. No effective bite. Private.
  • Code can indeed cause harm. Increase in costs & reduction in speed.

Philippa Charles

  • Is now taking inspiration from that English philosopher & guitarist Keith Richards (don't do anything that makes you cringe or you can't live with - therefore we should be doing this already and don't need further regualtion).
  • Different jurisdictions have diff approaches to tactical manoeuvres. Is it right to deem it an ethical violation?
  • Attempts to codify guidelines will lead to proceedings within arbitration as to whether it is violation.

AGAINST THE MOTION:

Hilary Heilbron QC

  • Hilary Heilbron speaks against the motion & talks of lying, fabricating evidence & warns of not having guidelines.
  • it is hoped basic standards will evolve & parties apply this prior to agreement to arbitrate being formed
  • Not prohibited therefore it must be permitted is too black & white. They are guidelines not rules.
  • Party needs to know relationship with arbitrator/chair. Guidelines can be shown to party. Also makes clear role of legal representative.
  • Party needs to know conseq of failing to abide by the guidelines. It is party who bears consequences in 1st instance.
  • Guidelines strengthen tribunals hand & take appropriate action & avoids derailing the arbitration & maintain integrity.

Cyrus Benson

  • False proposition to say further regulation needed as it assumes already has regulation
  • Different jurisdictions with different guidelines but they are still all ethical. This is what prompted guidelines.
  • Lots of stumbling blocks - document production, witnesses which guidelines should assist with
  • We can carry on with jurisdictional confusion or we could try to help or we could wait for regulators to do it for us.
  • It's not going to be good if regulators step in to regulate on ethics, it will be different ways in different jurisdictions.
  • Very notion of adverse inference or costs award is a great deterrent.
  • Time needed to allow guidelines to evolve.

Conclusion:

80% of the audience voted against the motion.

 

A round up of our live tweets from last night's Halsbury's Law Exchange debate regarding International Arbitration

Filed Under: Arbitration , News

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