Between Cultural Boundaries and Legal Traditions: Ethics in International Commercial Arbitration

Abstract

This Article addresses the complete lack of ethical regulation of attorneys in international commercial arbitration. After exposing the range of problems caused by this omission, most significantly the possibility that attorneys in the same proceeding can be abiding by different ethical rules, Professor Rogers proposes a methodology for developing a new code of ethics for international arbitration. This methodology focuses on the relationship between morality and role, viewing professional ethical norms as a product of the functional role served by the advocate-lawyer in relation to other actors within a particular legal system. Ethical obligations in international arbitration, under this approach, must be derived from the inter-relational roles assigned to attorneys in that setting. Having outlined the content for a new code of ethics, Professor Rogers proposes an integrated enforcement regime under which the new ethical code would be implemented by major arbitral institutions and appended onto existing bodies of arbitral rules. This regime would make a new code of ethics the product of party agreement and subject to party modification. Professor Rogers also proposes making attorneys contractually liable for violations of these rules and empowering arbitrators to sanction attorneys for misconduct through a new form of arbitral awards called sanction awards. This article has subsequently been published as two separate articles: Fit and Function in Legal Ethics: Developing a Code of Attorney Conduct for International Arbitration, 23 MICH. INT'L L.J. 341 (2002) (identifying the lack of ethical regulation of attorneys in international arbitration and proposing a methodology for developing a new code of conduct). Context and Institutional Structure in Attorney Discipline: Developing an Enforcement Regime for Ethics in International Arbitration, 39 STAN. J. INT'L L. 1 (2002) (proposing integrated enforcement mechanisms through which to enforce new code proposed in Fit and Function).