Further regulation of arbitration counsel – is it needed?

On 11 September 2014, the Queen Mary Institute for Regulation and Ethics will host its inaugural conference, The Arguments For and Against Further Regulation of Arbitration Counsel’, which our own Lexis®PSL Arbitration is supporting as a media partner. The full programme, which includes contributions from leading-lights in arbitral practice and academia, can be viewed here. The event is certain to be very popular, so don’t miss out and sign up now.

A pertinent topic

The question of whether or not the conduct of arbitration counsel requires further regulation is particularly germane following the recent release of the LCIA Arbitration Rules 2014 (which take effect from 1 October 2014) and include, for the first time, a code of conduct for arbitration counsel called ‘The General Guidelines for Parties’ Legal Representatives’. Although expressed as ‘guidelines’, the description is potentially confusing as a legal representative’s agreement to comply with the general guidelines is a condition of appearing by name before a LCIA tribunal (art 18.5), whereas the label may give the impression that compliance is in some way optional. As those familiarising themselves with the new rules will know, the general guidelines impact the three key stakeholders involved in LCIA arbitrations (the lawyers, the parties and the tribunal), each charged under the new rules with ensuring compliance.

The LCIA, like the IBA before it, has taken the view that the further regulation of arbitration counsel is required. My views on the LCIA’s general guidelines are summarised in the recent New Law Journal article ‘Cheering News’, where I conclude that, despite their flaws, the general guidelines are a step in the right direction worth taking as they are aimed at ensuring that the arbitral process is conducted fairly. The scope and effect of the LCIA’s general guidelines will almost certainly feature in the conference’s sessions on 11 September 2014.

Answering a difficult question

As for the necessity for further regulation, one of the key arguments in favour arises out of the increased public scrutiny of arbitration in its many forms (in particular, international commercial arbitration and investment treaty arbitration). This ever-brightening spotlight makes it incumbent on those at the forefront of the community to ensure that arbitration is perceived as a reliable, ethical and efficient process of dispute resolution by the general public.

One way of achieving this is by improving and, to a certain extent, codifying our own regulation, so that when the process is accused by voices outside (and within) the community as being, at best, opaque or, at worst, corrupt, we are able to point to the measures that have been put in place to safeguard against the exploitable elements of a private, confidential method of dispute resolution.

Many of you will have seen that the press and Members of the UK Parliament have been calling into question the UK Government’s ability to arbitrate its commercial disputes, suggesting that there needs to be greater transparency of process and outcome when taxpayer money is at stake. In order to ensure that arbitration continues to exist in its present form (subject, of course, to necessary changes and improvements), I believe that the regulation of arbitration counsel is required as part of a wider programme of light-touch self-regulation.

The conference

The topic of ethics in arbitration is a perennial favourite and it will certainly generate passionate debate on both sides at the conference on 11 September 2014, so make sure you book a ring-side seat.

Filed Under: Arbitration , News

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