Being Polite In International Arbitration
Updated: Mar 14, 2022
Civility matters in legal systems. In a speech in 2006 the Honourable James Spigelman AC, then the Chief Justice of New South Wales, described the importance of civility for the proper functioning of the Australian justice system. He said that civility is a public virtue that reflects the broader values of tolerance and inclusiveness, and civil conduct reinforces the contribution which fundamental social institutions make to social cohesion. He observed,
“We must all ensure that proper conduct remains a principal characteristic of our legal discourse. Ours is a profession of words. We must continue to express ourselves in a way that demonstrates respect for others.”
Politeness, respect and courtesy have long been features of codes of conduct for advocates throughout the world. These are also part of the Code of Conduct of the Chartered Institute of Arbitrators, which states:
“A member shall not behave in a manner which might reasonably be perceived as conduct unbecoming a member of the Institute.”
A few years ago, the LCIA added an Annex to its Arbitration Rules that contains “General Guidelines for Authorised Representatives” in international arbitration, which is expressly intended “to promote the good and equal conduct” of party representatives. Now, the International Council for Commercial Arbitration has issued its own “Guidelines on Standards of Practice in International Arbitration”.
The new ICCA Guidelines
There are several features of these Guidelines that are worthy of note. Like the CIArb Code of Conduct and the LCIA Annex, they encourage participants in arbitration to behave with “integrity, respect, and civility”. Participants should also respect all forms of diversity and cultural background, and refrain from any form of discriminatory conduct.
But the Guidelines go further, by specifying that participants must ensure that arbitration remains a timely and cost-effective means of dispute resolution; they must respect privacy and confidentiality; and they must disclose any conflicts of interest. The Guidelines also cover all participants in arbitration, with specific sections devoted to arbitrators and expert witnesses as well as to party representatives.
Soft law and guerrilla tactics
What are we to make of these new Guidelines? They could be seen as yet another type of soft law, leading to new battlegrounds for parties to fight over and new guerrilla tactics – although the authors of the Guidelines strive to avoid this, stating:
“The Guidelines are not intended to serve as an autonomous basis for sanctions where no other basis exists and should not provide grounds for frivolous attacks on counsel or arbitrators nor are they intended to increase litigiousness or to exacerbate disputes between parties.”
They could also be seen as lacking in substance, since they contain broad statements about such things as acting with respect, without any specific examples to explain what is meant by this in the context of arbitration. Further, there is no regulatory body, like the CIArb’s Professional Conduct Committee, to implement the Guidelines and work out how they should be applied on a case-by-case basis. Participants in arbitration do not have to subscribe to the Guidelines, and do not have to take training courses to understand how they work.
The maturity of arbitration
And yet the Guidelines could also be taken as evidence of the increasing maturity of international arbitration as a values-based dispute resolution system. Arbitration has grown into something that matters. Participants have a stake in it and need to ensure that it functions properly. It is not a mere ad hoc assemblage of laws and procedures designed to churn out an answer to a disputed question, but a system of real weight and importance within the global economy.
Setting down in print the ideal behaviours means those ideals take form and are respected. It also reminds the practitioner, who may be lost in the fog of uncertainty that sometimes descends on arbitration practice, that the best compass to guide you home contains respect, integrity and common sense.
Ben Giaretta, 3 September 2021