Rectitude in International Arbitration

Abstract

Everything is in flux. Heracleitus1 Righteousness endures forever. Psalm 1112 ### (a) Heracleitus Meets the Psalmist THE SOMEWHAT excessive words attributed to Heracleitus find some application in the current search for ethical standards applicable to arbitrators sitting in international disputes. New patterns of misbehaviour create new types of ethical challenges. Few criteria for evaluating arbitrator independence and impartiality will likely stay foolproof for long, given how ingenious fools often prove themselves to be. Heracleitus notwithstanding, however, change does not occupy the entirety of human experience. Although tomorrow cannot be built on an assumption of yesterday's permanence, one must build on something. Yesterday's lessons remain better starting points than most. Thus the aspirational model of righteousness continues to manifest a stubborn stability, much as the Psalmist predicted. No less than in other areas of the law, elaboration of standards for arbitrator ethics implicates a tension between the transient and the permanent.3 Conflict-of-interest principles will remain useful only if implemented with sensitivity to new trouble spots. Traditional ethical models serve as starting points for evaluating the fitness of those to whom business managers, investors, and nations entrust their treasure and their welfare. Any model, however, must be flexible enough to address novel professional temptations. In particular, vigilance commends itself when lawyers take on various professional roles, making arguments as advocates in one case about propositions that remain open in other cases where they sit as arbitrators. The constant movement in arbitrators' lives and activities requires regular adjustment in both formulation and application of contours for acceptable and unacceptable arbitrator behaviour.4 ### (b) Why Bias Matters No one with a dog in the fight should judge the competition.5 Nor should anyone serve as a referee in a game after having decided which team will win. At least as an aspirational model, legal claims should be decided on their merits, …