CHAPTER 8 ETHICAL ISSUES AFFECTING INTERNATIONAL ARBITRATION

• Jurisdiction: United States

International Energy and Minerals Arbitration
(Sep 2013)
CHAPTER 8
ETHICAL ISSUES AFFECTING INTERNATIONAL ARBITRATION
Julie Bédard
Partner, Skadden, Arps, Slate, Meagher & Flom LLP
New York, New York, USA

JULIE BÉDARD, who speaks English, French, Romanian, Spanish, and Portuguese, concentrates her practice on international litigation and arbitration. She regularly advises clients on the drafting of dispute resolution clauses and has served as counsel in international arbitration proceedings held under the auspices of the International Chamber of Commerce, the American Arbitration Association, the International Centre for Dispute Resolution, and the International Centre for Settlement of Investment Disputes. Ms. Bédard has been selected for inclusion in The Best Lawyers in America (2012-2013), Global Arbitration Review's 45 under 45 (2011), Chambers Global: The World's Leading Lawyers for Business (2011-2012), Chambers USA: America's Leading Lawyers for Business (2009-2012), Chambers Latin America (2011-2013), Global Arbitration Review's International Who's Who of Commercial Arbitration (2011-2013), which described her as "an extremely bright all-rounder," and Euromoney's Guide to the World's Leading Commercial Arbitration Experts (2011). Ms. Bédard also received the "Best in Commercial Arbitration" 2012 Euromoney Women in Business Law Award. Ms. Bédard is chair of an arbitration governed by Romanian law, acted as sole arbitrator in an ICC arbitration concerning a distribution agreement involving a U.S. company and a Peruvian company, and was appointed in another ICC arbitration involving a manufacturing contract dispute between a U.S. company and a Chinese company. She also was appointed as a sole arbitrator in an UNCITRAL arbitration involving development agreements between a U.S. company and a Spanish company. Prior to joining Skadden, she practiced in litigation in Quebec, Canada (1996-1998), served as law clerk to the Honorable Justice Charles D. Gonthier of the Supreme Court of Canada (1998-1999), and taught an introduction to the common law and U.S. law to foreign LL.M. students at Columbia University (1999-2001). In 2001, she served as an intern to the Honorable David Edwards of the Court of Justice of the European Communities. She also worked at the Secretariat of the Court of Arbitration of the International Chamber of Commerce. In 2002, she pursued her doctorate in law at Columbia University (International Conflicts of Antitrust and Securities Regulation: It's All About Effects). Ms. Bédard is a frequent lecturer and author on international litigation and arbitration issues.

Rocky Mountain Mineral Law Foundation

International Energy & Minerals Arbitration: Ethical Issues Affecting International Arbitration

Toronto, Ontario, Canada

September 16-17, 2013

1. Background and Application of the Guidelines

2. Party Representation

3. Communications with Arbitrators

4. Witnesses and Experts

5. Submissions to the Tribunal

6. Information Exchange and Disclosure

7. Remedies for Misconduct

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1. Background and Application of the Guidelines

Background on Guidelines

• Task Force Survey of counsel and arbitrators

• Different ethical obligations or values/practices may create unfairness in the arbitral process

• Rules of professional conduct that may govern practice in international arbitration

— lawyer's home jurisdiction

— arbitral seat

— place where hearings physically take place

• Double deontology

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Application of Guidlines

Party Autonomy

The parties may thus adopt the Guidelines or a portion thereof by agreement. (Preamble)

Authority of the Tribunal

Arbitral tribunals may also apply the Guidelines in their discretion, subject to any applicable mandatory rules, if they determine that they have the authority to do so. (Preamble)

Guideline 1. The Guidelines shall apply where and to the extent that the Parties have so agreed, or 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.

Guideline 3. The Guidelines are not intended to displace otherwise applicable mandatory laws, professional or disciplinary rules, or agreed arbitration rules, in matters of Party representation. The Guidelines are also not intended to derogate from the arbitration agreement or to undermine either a Party representative's primary duty of loyalty to the party whom he or she represents or a Party representative's paramount obligation to present such party's case to the Arbitral Tribunal.

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Power of the Tribunal

Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines (ICSID Case No. ARB/03/25), Decision on Application to Disqualify Counsel dated September 18, 2008.

Ad hoc committee: Peter Tomka (President), Dominique Hascher, Campbell McLachlan QC

Counsel: Milbank, Tweed, Hadley & McCloy (Claimant) and White & Case (Respondent)

Decision: The annulment committee denied the Respondent's request to exclude Eric Schwartz, an attorney from the Claimant's legal team, because he had represented the Respondent in a related proceeding. Mr. Schwartz was a member of both the California and Paris Bars, raising the issue of which body of rules determined Mr. Schwartz's professional obligations.

The committee recognized that it had the "power...