Research Article


DOI :10.26650/ppil.2019.39.1.0008   IUP :10.26650/ppil.2019.39.1.0008    Full Text (PDF)

Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice

Burcu Osmanoğlu

Parties in international commercial arbitration are represented either by one or more party representatives registered with multiple bars or not registered with a bar at all or by a layperson. The seat of arbitration is usually where neither party’s representative is licensed. This diversity arising out of the very nature of international arbitration gives rise to the application of multiple ethical rules to party’s representatives and brings up the question of which ethical rules shall be applicable to parties’ representatives, who shall be the competent authority in case of breach and whether the arbitral tribunals have legitimate power to sanction the parties’ representatives. In this article, we first examine existing ethical rules regulating the conduct of party representatives in international arbitration. Then we explain the content and difficulties encountered in the application of the said rules. Finally, we discuss the gaps of the current regulations and the enforcement issue.

DOI :10.26650/ppil.2019.39.1.0008   IUP :10.26650/ppil.2019.39.1.0008    Full Text (PDF)

Uluslararası Ticari Tahkimde Taraf Vekillerine Uygulanan Etik Kurallar ve Uygulamada Karşılaşılan Sorunlar

Burcu Osmanoğlu

Uluslararası ticari tahkimde taraflar kimi zaman birden çok baroya bağlı bulunan, kimi zaman herhangi bir baroya bağlı bulunmayan veya hukuk eğitimi görmemiş bir veya birden çok vekil tarafından temsil edilmekte, tahkim yargılaması çoğunlukla taraf vekillerinin ikisinin de bağlı bulunmadığı tahkim yerlerinde cereyan etmektedir. Uluslararası tahkimin niteliği itibarıyla oluşan bu çeşitlilik taraf vekillerine birden çok ve bazı durumlarda çelişen etik kuralların uygulanmasına sebep olmakta, bu belirsizlik taraf vekillerine hangi etik kuralların uygulanacağı, etik kuralların ihlali halinde yaptırımın hangi otorite tarafından sağlanacağı, hakem kurullarının taraf vekillerini cezalandırma yetkileri bulunup bulunmadığı hususlarında birçok soruyu da beraberinde getirmektedir. Bu çalışmada uluslararası ticari tahkimde taraf vekillerine uygulanan mevcut kurallar incelenecek, bu kuralların içeriği ve uygulamada karşılaşılan zorluklar değerlendirilecek ve son olarak mevcut düzenlemelerdeki eksiklikler ile yaptırım sorunu tartışılacaktır.


EXTENDED ABSTRACT


The Chartered Institute of Arbitrators (CIArb) in its Code of Professional and Ethical Conduct for Members, defines ethical rules as “a set of moral principles according to which one should conduct one’s affairs”. It is common for parties in international commercial arbitration cases to be represented by one or more party representatives registered with multiple bars or not registered with a bar at all or even by a layperson, when permitted. Moreover, often, the seat of arbitration can be where neither party’s representative is licensed. This brings up the question of which ethical rules shall be applicable to the parties’ representatives, who shall be the competent authority in case of breach, whether the arbitral tribunals have legitimate power to sanction the parties’ representatives and so on. Long before the current discussions on the necessity to adopt a Code of Ethics for parties’ representatives, Professor Michael Reisman affirmed in 1971 that parties’ representatives should be subject to regulation at an international level. The International Bar Association (IBA) published the IBA Guidelines on Party Representation in its IBA Guidelines on 23rd May 2013 specifically regulating the conduct of party representatives in international arbitration proceedings. According to the Guidelines, it shall apply where and to the extent that the Parties have so agreed, or if the arbitral tribunal, after consultation with the Parties, wishes to rely upon them after having determined that it has the authority to rule on matters of Party representation to ensure the integrity and fairness of the arbitral proceedings. Furthermore, the London Court of International Arbitration (LCIA) Rules came into force on 1st October 2014 with an Annex entitled General Guidelines for the Parties’ Legal Representatives (LCIA Rules). Contrary to the IBA Guidelines, the LCIA Rules apply to all arbitration conducted under the auspices of the LCIA commenced on or after 1st October 2014. Finally, the Singapore Institute of Arbitrators (SIArb) published Guidelines on Party-Representative Ethics (SIArb Guidelines) on 26th April 2018 and the American Arbitration Association (AAA) together with the International Centre for Dispute Resolution (ICDR) published Standards of Conduct for Parties and Representatives (AAA Standards). Uncertainty regarding the ethical rules applicable to party representatives as well as the differences in the application and appreciation of the above-mentioned regulations lead to two concerns: the use of guerrilla tactics by party representatives in an attempt to derail arbitral proceedings and the absence of a level playing field for parties and their counsel in international arbitration. Existing guidelines and rules deal with common areas of concern, including the party representative’s duty to ensure the integrity and fairness of the arbitral proceedings, duty of candour or honesty owed to the arbitral tribunal, the promotion of the good and equal conduct, limitation of the communication with witnesses, the other party and arbitrators. However, it is clear that existing regulations do not provide a solution for all the existing ethical problems, such as contingent fees, third party funders, lawyer-client privilege, and confidentiality of settlement negotiations. Some scholars called for the creation of a Global Code of Ethics, a uniform set of rules applicable to all party representatives at an international level. However, other scholars expressed concerns that the super production of rules and guidelines may bring more harm than the benefit it is supposed to bring and is a threat to one of the biggest advantages of international arbitration which is the procedural flexibility. One of the biggest problems regarding the application of ethical rules to party representatives in international arbitration is the absence of a competent authority who is able to enforce the said rules in case of a breach. The IBA Guidelines as well as the LCIA Rules give arbitral tribunals the power and duty to sanction breaching party representatives. It is understandable knowing that the arbitral tribunals are vested with wide powers and in the best position to supervise and prevent unethical behaviour. An alternative would be to give the power to sanction party representatives to arbitral institutions - as did the AAA in its Standards of Conduct - by recording party representatives that do not conduct themselves in an appropriate manner in the Institute’s black lists. Finally, the Swiss Arbitration Association (ASA) suggested the creation of a Global Arbitration Ethics Council, a transnational body charged with the enforcement of ethical principles. In November 2015, an informal working group was chaired by the ASA in which several known arbitration associations and institutions participated. After reviewing empirical data collected from bar councils all over Europe and the US, the group held a second meeting and reached the conclusion that the “time has not yet come” to form an international body charged with the enforcement of ethical standards. This article suggests that, before calling for radical changes such as the implementation of a Global Code of Ethics or the creation of a transnational body charged with the enforcement of ethical principles, it should be deeply analysed whether arbitral tribunals are able to deal with ethical issues under current regulations.


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APA

Osmanoğlu, B. (2019). Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice. Public and Private International Law Bulletin, 39(1), 275-294. https://doi.org/10.26650/ppil.2019.39.1.0008


AMA

Osmanoğlu B. Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice. Public and Private International Law Bulletin. 2019;39(1):275-294. https://doi.org/10.26650/ppil.2019.39.1.0008


ABNT

Osmanoğlu, B. Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice. Public and Private International Law Bulletin, [Publisher Location], v. 39, n. 1, p. 275-294, 2019.


Chicago: Author-Date Style

Osmanoğlu, Burcu,. 2019. “Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice.” Public and Private International Law Bulletin 39, no. 1: 275-294. https://doi.org/10.26650/ppil.2019.39.1.0008


Chicago: Humanities Style

Osmanoğlu, Burcu,. Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice.” Public and Private International Law Bulletin 39, no. 1 (Mar. 2024): 275-294. https://doi.org/10.26650/ppil.2019.39.1.0008


Harvard: Australian Style

Osmanoğlu, B 2019, 'Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice', Public and Private International Law Bulletin, vol. 39, no. 1, pp. 275-294, viewed 29 Mar. 2024, https://doi.org/10.26650/ppil.2019.39.1.0008


Harvard: Author-Date Style

Osmanoğlu, B. (2019) ‘Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice’, Public and Private International Law Bulletin, 39(1), pp. 275-294. https://doi.org/10.26650/ppil.2019.39.1.0008 (29 Mar. 2024).


MLA

Osmanoğlu, Burcu,. Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice.” Public and Private International Law Bulletin, vol. 39, no. 1, 2019, pp. 275-294. [Database Container], https://doi.org/10.26650/ppil.2019.39.1.0008


Vancouver

Osmanoğlu B. Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice. Public and Private International Law Bulletin [Internet]. 29 Mar. 2024 [cited 29 Mar. 2024];39(1):275-294. Available from: https://doi.org/10.26650/ppil.2019.39.1.0008 doi: 10.26650/ppil.2019.39.1.0008


ISNAD

Osmanoğlu, Burcu. Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice”. Public and Private International Law Bulletin 39/1 (Mar. 2024): 275-294. https://doi.org/10.26650/ppil.2019.39.1.0008



TIMELINE


Submitted05.04.2019
Last Revision28.05.2019
Accepted28.05.2019

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