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In his President’s Message of September 2014, Elliott Geisinger, President of the Swiss Arbitration Association (ASA) stated his concerns about the ethical guidance published recently by both the IBA (Guidelines on Party Representation in International Arbitration) and the LCIA (General Guidelines for the Parties’ Legal Representatives)*.
In short, his main concerns were:
Taking these concerns (in of course much greater detail than I have set out) into account, Geisinger has issued a call to action for the creation of a ‘truly transnational body to apply and enforce ethical principles’. The proposal is:
In parallel with creation of the committee, Geisinger propose a creation of a set of ‘core principles’ for counsel conduct drafted jointly by the institutions. He is clear that this would not be just another set of rules, this would be a truly joint global project with principles common to all parts of the arbitration community enshrined in the rules. He anticipates the core principles being only 1-2 pages long and potentially being similar to the LCIA Annex. The principles would work alongside statutory or other rules that apply to counsel by virtue of their bar admission.
Geisinger acknowledges the ambition of this project and that similar projects have been launched and failed. However, given the current debate and focus on ethics in the arbitration community, he feels that the time may be ripe for a project of this nature.
While Mr Geisinger is to be applauded for having ambition and drive to improve the practice and image of international arbitration some obvious concerns spring to mind:
And what do those outside our community think? Arbitration, particularly involving states, is becoming more well-known and scrutinised outside of the arbitration/legal world. There is a real fear that if we do not regulate ourselves others who know less about our ‘world’ will try to do so (an uncomfortable thought for those who engage with this topic academically and with good intentions, let alone for those who tread a fine ethical tightrope). In my, humble, opinion Geisinger’s proposals are laudable and well-meaning but too theoretical to have any real substance at this stage and fail to address all of its own concerns about the IBA and LCIA codes already in the market. While ethics in arbitration is a practical problem and not just an academic debate, these initiatives ought to be appraised and supported but whether this is the one that will really take hold, we will have to wait and see but I fear that the ‘waiting’ may be the undoing of this initiative.
*LexisPSL Arbitration subscribers can find content here on the IBA and LCIA rules.
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