Disqualifying Counsel for Conflict of Interest in International Arbitration: Tribunals’ Powers and Limits

Abstract

ABSTRACT: Ethical issues in connection with the parties' legal representatives may arise in the course of arbitration proceedings in particular matters of conflict of interest. This article examines the specific question of whether arbitral institutions and arbitrators have power to sanction counsel's misconduct especially in the event of conflict of interest. Such power is weighed against parties' fundamental right to choose legal representation and the absence of express provisions granting arbitrators such power in most of the major international arbitration rules and arbitration legislations. International "soft law" instruments which may provide for such powers do not have a binding effect unless embedded in parties' agreement. The article also looks at the very few cases where international arbitral tribunals have dealt with the subject under the arbitration rules of the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC) and UNCITRAL. The arbitrators in these cases have applied different set of international and national rules and have reached different outcomes to the issue. Therefore, developing "truly transnational" ethical rules and an independent body with power to enforce might be needed. Meanwhile, it is submitted that arbitrators have no other choice than determining these matters based on "soft law" instruments and other professional guidelines which remain the widely accepted international standards in the industry.