In August 2010, the International Bar Association Arbitration Committee resolved to form a taskforce on counsel ethics.
The mandate of the taskforce is to consider “whether the lack of international guidelines and conflicting norms in counsel ethics undermines the fundamental protections of fairness and equality of treatment and the integrity of international arbitration proceedings”. A key purpose is to consider if a code of some form is needed to regulate the conduct of counsel to international arbitration proceedings. The Committee is presently surveying the arbitral community.
This is an interesting initiative directed at filling an obvious gap. Domestic court advocacy rules usually do not apply directly in international arbitration proceedings, leading to uncertainty as to what rules – if any – apply to important ethical questions such as whether counsel are required to disclose adverse authorities to a tribunal, to what extent third-party funding arrangements are appropriate and whether extensive pre hearing preparation of witnesses is permitted. It is to be hoped that some form of practical and broadly-endorsed guidance results.